• by Wendy Davis  @wendyndavis, April 30, 2009

Faced with growing opposition from outside groups as well as questions from the Justice Department, Google is attempting to rally support for the proposed settlement of a lawsuit brought by authors and publishers.

The search giant issued a blog post Wednesday stating that the ambitious settlement "will help expand access to books in the United States."

The agreement calls for Google to fund a new book rights registry and allows the company to digitize books under copyright and sell downloads at prices it sets with the registry. The company emphasizes that the deal make it easier for people to find and purchase obscure books as well as those that are out-of-print.

U.S. District Court Judge Denny Chin in New York is expected to rule later this year on whether to approve the settlement, which would resolve a 2005 copyright lawsuit filed against Google by the Authors Guild and the Association of American Publishers.

The Justice Department hasn't yet officially weighed in on the case, but has started making inquiries into whether the settlement raises antitrust issues.

In addition, some consumer advocates and outside organizations criticize the deal because it will give Google an advantage over other potential publishers when it comes to "orphan works" -- material under copyright, but whose owners can't be found.

The orphan works provision of the settlement would protect Google from liability for digitizing and selling orphan works. The benefit of that provision is that such works would again become available to the public. Currently, many publishers are afraid to print new editions because they could be sued for copyright infringement should the owner surface.

But the problem, according to some advocates, is that Google is the only publisher who would have such protection -- which would create an unequal playing field in the nascent digital book space.

"We want everybody to have access to orphan works," said Sherwin Siy, a lawyer with Public Knowledge, which has asked for permission to weigh in against the settlement. "This settlement wouldn't do that."

The New York Law School's Institute for Information Law & Policy also intends to file a friend-of-the-court brief about that issue. James Grimmelmann, an associate professor spearheading the school's effort, said he could think of at least one potential revision to the deal that could resolve the orphan works issue. Grimmelmann proposed that the parties agree that the newly created registry would license the right to sell orphan works. If the registry was mandated to license that right to all publishers, including Google, then competitors would also be able to sell those books without facing copyright lawsuits.

Separately, a group of 16 academics also wrote to Chin this week to request more time to evaluate the settlement. They argue that the agreement includes some provisions "that seem to run contrary to scholarly norms and open access policies." For instance, they write, the settlement is vague about whether Google and the registry will use digital rights management technology -- which they disfavor. They said in the letter that wrapping downloaded books in copy protection software "will limit their use and circulation, and may limit scholarly citation as well."

For its part, Google is touting the settlement's practical benefits to consumers. "When you find the book you're searching for, you'll be able to preview 20% of the book over the Internet from anywhere in the U.S," the company writes. "If you want to read in foreign languages, you will have access to tens of thousands of more books than you have today."