16 April 2012 -  Let Games begin!  In what almost every pundit is calling the “World Series” or “World Cup” of intellectual property trials”, the Google/Oracle trial gets underway today with jury selection in a federal court in San Francisco.

And it is a biggie.  The trial marks the first time that a jury has been asked to weigh up the inner workings of Google’s software, albeit hardware makers such as Motorola Mobility and HTC also face a barrage of lawsuits over the use of Android software in their smartphones, tablets and e-readers.

The issue?  Java, the software platform of which Oracle became the owner, when Oracle acquired Sun Microsystems in 2010.  And there is an all-star witness list: both Google CEO Larry Page, and Oracle CEO Larry Ellison are expected to take the witness stand during the trial, as will former Sun CEO Jonathan Schwartz, and Andy Rubin, the Google Senior Vice President who runs its Android and mobile operations.

The allegations are fairly simple.  Oracle sued Google in the summer of 2010, alleging that the Android mobile operating system violated seven different Java patents. Five of those patents have since been tossed out since they were re-examined, leaving two.

But the biggest issue is over copyright. Oracle will argue in court that Google violated copyrights on Java. Specifically, Oracle alleges that when Google was creating Android it copied a lot of material more than 37 Java application programming interfaces or APIs, and 11 lines of Java source code, and that these are subject to copyright protection like other intellectual property.

This is a new and controversial legal argument that has software developers watching the trial closely. Google has argued that APIs shouldn’t be subject to copyright protection because they’re more akin to tools and techniques that programmers use to build software.  Google has argued APIs and programming languages aren’t entitled to copyright protection, for exactly that reason: You can copyright a given program because it’s unique, but you can’t copyright the language it’s written in.  As Google puts it in one of its briefs: “That is a classic attempt to improperly assert copyright over an idea rather than expression.”  And earlier in that same brief, it argues: “Without a computer programming language, the set of statements or instructions cannot be understood by the computer. As such, a computer language is inherently a utilitarian, nonprotectable means by which computers operate. …The protectable material is the computer program (the set of statements or instructions); the unprotectable material is the method or system (the language). So understood, original computer programs may be protected, but the medium for expression in which they are created is not.”

For its part Oracle outlined its position on the issue as follows:

“Allowing copyright protection for computer interfaces makes sense because original expressions in software are innovations of an incremental sort that Congress meant to encourage. Trade secrecy law cannot achieve this goal because interfaces can be reverse-engineered. Patent law, because of its novelty and non-obviousness requirements and examination process, protects those substantial innovations, claimed as broadly and generically as possible, and in return gives strong protection against even those who independently develop the same technology. Copyright law protects innovations at a much finer level of detail (where original expression can be found) than patents ever could, but only offers protection against the copyist.”

Why didn’t Google just sign up for a licence and move on? A licence would not have been expensive. There is even a free, open-source version.  As Oracle tells it, Google built Android out of Java building blocks so that it would be easy for the legions of existing Java developers to write Android applications. But it didn’t want to make Android fully compatible with other Java-based platforms, which taking a licence would have required.

The idea was to keep the applications within the Android ecosystem, and under Google’s control. Developers can check in, but they can’t check out. This damages “the entire Java ecosystem”, according to an Oracle lawyer, because part of the value of any Java application is in its ability to “talk” to all the others.

This story turns the images of Android as open software, and of Google’s “don’t be evil” ethic, upside down. Oracle is also cast against type, as the defender of openness, protecting compatibility in the name of all Java developers. Yet it is a bit hard to see how Google has harmed Java developers by building the first viable mobile operating system they can use and profit from. Anyone who has written an app for Android will have little trouble recasting it for another Java platform. Oracle is more likely concerned to participate in the future of a popular operating system that may grow beyond phones, and even enter Oracle’s core market, business software.

Of course, all of this is only relevant if Google is found to have violated Oracle’s IP. There will only be reparations if there was a theft.

5 May 2010 —Google’s Chief Legal Officer, Chief Privacy Counsel, and former Chief Financial Officer have each been sentenced to six months in prison by an Italian court for violating the country’s privacy laws. The decision (the “Decision”), issued by the Criminal Court of Milan (the “Court”) on February 24, 2010, and published on April 12, 2010, is the most recent and most dramatic demonstration of the need for companies doing business in Italy – and in Europe generally – to pay close attention to, and maintain strict compliance with, such countries’ privacy laws. The Decision also raises serious questions about whether Internet service providers and Internet content providers that allow third-party content on their services or websites need to increase their screening, monitoring, and/or removal of any such content that might violate local privacy or other laws.

For an excellent analysis from The Metrpolitan Corporate Counsel please click here.

Per leggere la decisione italiana clicca qui.

12 September 2009 — Here is an excellent analysis of the Google Book Search project by Christopher Caldwell of the Financial Times.

Sceptics often ask of new government programmes: if it is so worthwhile, why is the private sector not doing it already? A similar question can be asked of companies claiming to be acting for the general good: if the public needs it, why is the government not doing it already?

Google’s plan to digitise all of the world’s 168m books needs to be examined in this light. Since 2004, the search-engine corporation has scanned about 5m titles, many of them under copyright. A comprehensive digital library could obviously generate a lot of revenue (although it is not yet fully obvious how). Last year, Google negotiated a long and complicated “settlement” with the Authors Guild and the Association of American Publishers, which had been suing it. Google would keep just over a third of revenues generated by these online books, with the remainder going to a non-profit book-rights registry run by publishers’ and authors’ representatives. The registry would seek out the authors of “orphaned” books – those under copyright but out of print – and distribute royalties to them. Google agreed to pay $125m to fund the registry.

“Fairness hearings” on the settlement will be held in a federal court in Manhattan next month. This week a variety of parties filed briefs on a variety of grounds, urging the court to block it. Several European governments, led by France and Germany, oppose the deal. So does Amazon, the online retailer. The US justice department will weigh in next week. Microsoft’s lawyers recently argued that a class-action lawsuit is the wrong way to change fundamental laws. They are right.

Is Google building a cyber-library or a cyber-bookstore? If the former, then how the knowledge gets diffused may be as important as who keeps the money. This week, the novelist Jonathan Lethem filed a statement warning: “If future readers know that they are leaving a digital trail for others to follow, they may shy away from important intellectual journeys.” Amen. Nobody wants the government keeping a list of anyone who has ever downloaded a book by Karl Marx or Sayyid Qutb. But that kind of privacy is not really at issue in the Google deal. The essential privacy problem of the internet age is that one’s smallest velleities leave a trail of evidence, in a way they did not before. A malevolent government can pick up that trail just as easily on Amazon, the website of a publishing house, or a chat room. It is not really affected by whether Google is granted a monopoly on out-of-print books.

The bigger challenge to privacy is that those velleities have a commercial value. A person who browses through the novels of Nadine Gordimer and J.M. Coetzee is marginally more likely than the average internet surfer to buy an airline ticket to South Africa. A person who looks at biographies of W.G. Grace is more likely to buy a cricket bat. It is possible to profit from that knowledge. To whom do such profits belong? The business model Google has followed for Gmail – scanning messages to generate personalised advertising – gives a clue what Google thinks. Google’s draft “books privacy policy”, issued last week under pressure from the US Federal Trade Commission, promised not to share personal information with third parties but reserved the right to store information in order to “report on aggregate user trends”. Google does not care about who you are; it cares a lot about what you might buy.

Those who believe Google is building a bookstore, not a library, have focused on whether the settlement hinders competition. It does. But is competition so necessary in this context? You do not automatically gain when you replace a unified service with a fragmented one, as travellers on the post-privatisation British railways will have remarked. Google’s digitisation project is a matter of organising products that already exist, not of offering incentives for the creation of new ones, which is the usual justification for market competition. It is easy to justify monopolies operating in the public interest. We call them utilities. It is harder to justify monopolies’ remaining in private hands. If $125m is all it costs to facilitate a hugely beneficial cyber-library, then, as we said, who needs Google? If the government will not pay for it, some philanthropist could provide the seed money, as Andrew Carnegie did for hundreds of libraries across the US and Britain.

Neither privacy nor competition is the main reason for scepticism about the Google books settlement. The problem is that the arrangement is a usurpation. It is a false analogy to compare Google Books, as some defenders of the settlement do, to Amazon’s Kindle system of e-books. Authors and publishers participate in Kindle by granting Amazon permission to publish in that format. Google’s system would dispense with such permission. It is thus a change in the regime of property rights. The settlement authorises a large corporation to manage the rights of authors it cannot locate, and to justify itself with vague invocations of our cultural heritage.

Maybe our society is evolving in that direction anyway. The past century was an era in which people ceded rights to government in exchange for what they saw as a more efficient allocation of resources. Maybe publics are now willing to make the same trade with the private sector. Maybe we are headed back to the era of government-created monopolies such as the British East India Company and the Dutch VOC. But, if such a monopoly is to be created, government must create it explicitly and not permit interested parties in a private lawsuit just to divvy up the spoils.

Financial Times    Copyright The Financial Times Limited 2009

3 September 2009 — Amazon has panned Google’s book settlement with the Author’s Guild saying that the deal “restrains competition” and “usurps the role of Congress in legislating solutions” as copyright and new technologies collide.  It is a member of the Open Book Alliance – which counts Amazon, Microsoft and Yahoo as members — and other groups have rallied against it. A hearing is scheduled for Oct. 7 to hear objections to the Google pact with authors and publishers.

In it’s brief Amazon states:

The settlement proposed by the parties to this case should not be approved. It is unfair to authors, publishers, and others whose works would be the subject of a compulsory license for the life of the copyright in favor of Google and the newly created Book Rights Registry. It is anticompetitive and violates antitrust laws because it provides Google an effective monopoly in the scanning and exploitation of millions of works whose copyright holders cannot be located or choose not to involve themselves in this class action. It also creates a cartel of authors and publishers—the Books Rights Registry—operating with virtually no restrictions on its actions, with the potential to raise book prices and reduce output to the detriment of consumers and new authors or publishers who would compete with the cartel members. Indeed, the agreement is even arguably unlawful on its face because it constitutes price fixing by horizontal competitors—namely, the Rightsholders, who are agreeing collectively on a mechanism for setting the highest possible prices to be charged for their works. Finally, the proposed settlement improperly seeks to stretch the boundary of this Court’s power beyond its lawful limits, using the class action mechanism embodied in Rule 23 of the Federal Rules of Civil Procedure to create a massive and complex business arrangement of perpetual duration among class members, Google and the Registry.

For more information and to download Amazon’s full brief click here.  For our review which was posted previously click here.  

7 August 2009 — Google sponsored a webinar on July 29th to discuss what the Google Library Project Settlement means for publishers and authors. The panel featured four people who were involved in crafting the agreement: Richard Sarnoff, co-chair, Bertelsmann, Inc., Association of American Publishers (AAP) board of directors; John Sargent, CEO, Macmillan, AAP board of directors; Jan Constantine, general counsel, Author’s Guild; and Jim Gleick, author. In addition, Michael Healy, executive director designate, Book Rights Registry (BRR), discussed the role of the BRR moving forward. The webinar was hosted by Jim Milliot, business and news director of Publishers Weekly .

If approved by the Court in October, the Google agreement will create one of the most far-reaching intellectual, cultural, and commercial platforms for access to digital books for the reading public, while granting publishers unprecedented opportunities and protections.

To hear the entire event:  click here

The European Commission is holding a hearing September 7th to discuss the implications of the settlement for European authors, publishers and libraries. 

The Settlement throws open many questions and concerns from a European rightsholders perspective. While the Settlement is a U.S. agreement and is confined to that territory, there are extra-territorial implications in that it covers the works of European and other foreign rightsholders with a U.S. copyright interest. Yet, the various commercial applications of the Google Book Settlement (e.g. the purchase of access to books online and institutional subscription models) would not be available to users and consumers outside the U.S.   European publishers and authors contend that, under existing copyright law, Google could not and should not have proceeded with large-scale digitisation without obtaining their prior authorisation. They believe that the Google Settlement, which is based on the principle “digitise first, ask for permission later” undermines the fundamental principle of “prior authorisation”. Their major concern is that the Google Settlement will turn copyright from a system of prior authorisation into an “opt-out” system because the “burden of proof” has fallen on rightsholders to assert their copyrights rather than on Google to first ask rightsholders for their permission to use in-copyright works.

We have prepared a detailed briefing paper for clients who are attending the hearing.  For our other readers, we’ve provided an outline to brief you on the issues:

Introduction

In 2005, the Authors Guild filed a lawsuit against Google arising from the Google Books project.  In October 2008, the parties announced a proposed settlement.  

Academics and rightsholders have criticized the Settlement terms on grounds ranging from antitrust to privacy.  

The Settlement sets forth in great detail provisions regarding royalties and book advertising but does not contain meaningful privacy protections for readers or authors which is a major rallying point.  

Various entities and individuals have filed comments, objections, and amicus curiae briefs concerning the proposed settlement. 

NOTE: One interesting turn in the U.S. has been the efforts of Professor Robert Darnton who is a scholar on “the history of the book.”   In a series of articles written for the New York Review of Books, he discusses his primary concerns of the Settlement, namely the possibility of price-gouging and the democratization (as opposed to the commercialization) of information. His series of articles changed the conversation surrounding the Settlement with his first piece “Google & the Future of Books” he pointed out that the settlement is too complex to clearly suggest all potential implications.  

This theme has been picked up and emphasized by others: the importance of sharing ideas through the reading and writing of thoughts. But Darnton has stated that privilege (wealth, access to printing guild, etc.) has always affected the individual’s ability to take part in the “republic of letters.” The ability to communicate is the result of “money and power.” Copyright is to be given only for a limited duration and to promote the progress of science and the useful arts suggesting, Darnton says, that copyright principles place the public good before an author’s profits. But copyright protections have grown substantially in duration and developed into “the cultural industries.”

Background

            [This section briefly summarizes the nature of the entities addressed in the Settlement, the terms of the Settlement, critical dates, and procedural rules for filing interventions, objections, and amicus curiae to the Settlement.]

A.     Factual Background

The Google Books project began in 2004 as an online research tool and database to access the texts or large portions of the texts of millions of books.  

During this time, Google announced it had entered into agreements with several libraries to digitize books, including books protected by U.S. Copyright law, in those libraries’ collections. 

In 2005, Google was sued by the Authors Guild, Pearson PLC’s Penguin unit, McGraw-Hill Cos., John Wiley & Sons Inc. and CBS Corp.’s Simon & Schuster subsidiary.  

These parties sued, alleging that the project’s digitization process was an infringement of their copyrights “on a massive scale.” In response to this claim, Google argued that its digitization of the books and display of snippets, or a few lines, of the book is permitted under the U.S. Copyright law’s Doctrine of Fair Use. 

But rather than resolving the legal dispute over whether Google’s digitization and display of the books was an action permissible under the Doctrine of Fair Use, the parties negotiated a settlement. 

B. Legal Background

The proposed Settlement arose after nearly two years of negotiations.  The defendant in this Settlement is Google.  

The plaintiffs in this Settlement include a Class, consisting of “all persons and entities that as of January 5, 2009 own a U.S. copyright interest in one or more books or inserts that are ‘implicated by a use’ authorized by the settlement.” 

A “U.S. copyright interest” is defined as owning or having “an exclusive license in, a copyright protected by U.S. copyright law.”  

A U.S. copyright interest also includes having the exclusive right to publish that book in the U.S. or having the legal right to sue another for infringing rights in the Book.  

Additionally, “several persons may have U.S. copyright interests in the same Book, such as co-authors, an author and a publisher, and the heirs of an author.” 

A copyright interest that is “implicated by a use” authorized by the Settlement includes ownership rights to a work that wil be implicated by Google’s use of the Book. An example would include “the reproduction or display of any content from a Book.” 

       NOTE: Non-Party Submissions/Interventions in the Google Books     Litigation 

           a.   No party has yet been granted a motion to intervene in the Google Books Settlement, though various class members have filed formal objections and many individuals have submitted commentary. 

          b.    Only the Institute for Information Law and Policy at New York Law School and Public Knowledge have requested and been granted permission to file amicus briefs.  

           c.     There are also pending actions of the European Commission and the U.S. Department of Justice.  

            d.     The Internet Archive, Lewis Hyde, Harry Lewis, and the Open Access Trust separately filed letters requesting pre-motion conferences, which the court deemed as motions to intervene and subsequently denied as to all movants.  Lewis Hyde, Harry Lewis, and the Open Access Trust have appealed this ruling, and plan to file an actual motion to intervene.

C.  Settlement Entities

The Google Library Project refers to the sources from which Google has scanned Books and other works in libraries and other sources including through book drives, from rightsholders directly or elsewhere, for the purposes of digitizing them.   

The Google Partner Program refers to the entities where “[p]ersons who have Copyright Interests in works contract with Google, (other than by operation of this Settlement Agreement) to grant to Google the right to include them into the final product.”  These two groups compiled construct what is considered the Google Book Search database.  

The Book Rights Registry is a part of the Settlement established to act on behalf of rightsholders.  The Registry will “own and maintain a rights information database for Books and Inserts and their authors and publishers” and will attempt to locate such rightsholders. The Registry will also receive payments from Google and “distribute those payments to Registered Rightsholders in accordance with the Settlement Agreement.” The Registry is also responsible for resolving disputes between rightsholders and Google. 

Consumer Purchase and Consumer Purchases, refer to “a service provided by Google that allows a user, for a fee, to access and view Online the full contents of a Display Book”.

The Institutional Subscription refers to “any service of a limited duration provided by Google to an institution for a fee that allows Online access to and viewing of the full contents of the Institutional Subscription Database,” which is explained below.

The Public Access Service refers to “a service provided by Google to each public library and each not-for-profit Higher Educational Institution that allows users to search and view the entire then-current Institutional Subscription Database”.

D. Settlement Terms

The Settlement agreement itself allows Google to continue with its intended purpose by granting a license to Google. The license is between “Google, as owner of its digital files collection, and the rightholders and the [R]egistry which the [S]ettlement creates to act on behalf of the rightholders.”  

By default the rightsholders have been “opted-in” to the Settlement, which licenses Google to have the right to these works for use.  

Rightholders who have “opted in” then become split between those that have registered themselves as rightholders through the Registry and affirmatively hold the right to claim payments, and those individuals who are not registered, or in many cases orphaned, and who cannot claim payments. 

The Settlement payout/compensation terms are quite complex and will not be enumerated here. The financial terms start at § 2.1 of the agreement. 

►  MAJOR OBJECTIONS TO THE AGREEMENT

A.  Timing

On of the biggest objections is there has been insufficient time between the announcement of the Settlement and the deadline for opting out or registering objections to allow appropriate consideration of the options.  

Further, the agreement lacks transparency because few non-legal readers will understand the dense legal language.  

Further, many have approached Congress to revisit copyright law, especially given the changes in technology since it was last revised rather than allowing the actions of one or a few giant, on-line, unregulated businesses to bring about fundamental changes in this step-down fashion. 

B.  Antitrust issues and anti-competition

The chief antitrust argument is that the Settlement could frustrate innovation because the Book Rights Registry can prevent the development of competitive services. The Settlement permits-but does not require-it to license its rights to third parties, and it does not provide standards that would govern the terms of licensing.  

Google may not have set out to create a monopoly, but the class action character of the settlement prevents competition. Based on its record, one assumes Google is not likely to abuse its monopolistic power in this case, but the risk remains, especially if the current owners sell the company. The settlement does not prevent Google from abusing its power position in any way. 

But the fact remains that Google will gain a de facto monopoly on the largest digital library of books in the world and the only way for other potential providers to compete would be to begin scanning books and hope for a similar lawsuit with a similar settlement.  

These arguments are made along with the assertion that the goal of the Book Rights Registry to maximize profits conflicts with the goal of many class members to maximize public access and that the Book Rights Registry may not reflect this diversity of perspectives.  

There is also the argument that Google has imposed a lack of lack of meaningful competition. Google and the Book Rights Registry can set subscription prices at a profit maximizing point that many institutions/entities may not be able to afford. 

Further, Google could shift from a business model based on ad revenue-and thus focused on maximizing the number of users-to one based on profit maximization-and thus potentially focused on charging higher prices from fewer users. 

In Europe the German delegation (the driver in Europe) has noted that the Settlement raises concerns about concentration of media ownership, and disadvantages the EU’s own digitizing initiatives because the latter only digitizes work after obtaining consent from the rights-holders.  

The problem is that in Europe the investigation will focus only on the copyright issues, not the anti-competitive issues. 

James Grimmelmann, who has become an authority on the anti-competition/public policy implications of the Google agreement, makes these points: 

   -  there should be an antitrust consent decree forbidding anti-competitive practices.  

   -  there should be nondiscrimination between copyright owners (non-party/future copyright owners should not be offered different deals).  

   -  there should be meaningful library and reader representation at the Book Rights Registry 

   -  Google poses an antitrust threat: If a company wants to enter the market in the future there is no guarantee that the plaintiffs (publishers, authors) would agree to organize themselves in order to agree to a class settlement as they did with Google.  

NOTE: a very good analysis of all the antitrust/anti-competition concerns was written by Randall C. Picker, a law professor at the University of Chicago, and can be accessed by clicking here.

C.  International copyright rights violated

The basic argument is the Settlement is, basically, an amendment to the existing U.S. copyright law that confers non-statutory formalities on authors in order for them to protect their work. 

The German delegation has argued that Google’s interpretation of the fair use doctrine is “irreconcilable with the principles of European copyright law,” which requires the rights-holder’s consent prior to reproducing or making publicly available their work. 

Additionally, the German delegation notes that the Settlement raises concerns about concentration of media ownership, and disadvantages the EU’s own digitizing initiatives because the latter only digitizes work after obtaining consent from the rights-holders. The German delegation requested that that the Commission investigate the impact of the Settlement “from the point of view of copyright law, law on restrictive practices and cultural policy, and, where appropriate, to introduce new measures to protect rights holders.” At present, however, the investigation will focus only on the copyright issues, but the investigation may be expanded to cover the potential anti-competitive effect of the Settlement as well. 

It is totally “backward” for a rights-holder to have to initiate contact with Google to inform it of the rights he/she wishes to withhold when it should be incumbent on the non-rightsholder first to obtain permission from the rightsholder. 

The Settlement is contrary to copyright law by requiring the artist to enter a contractual agreement with a private corporation. 

Essentially an opt-out policy is the only legal alternative for the Settlement. 

The Settlement lacks specificity regarding whether the Book Rights Registry is required to indicate the copyright status of the books in its database, including whether or not the books are classified as “orphan works.”  

Some legal commentators have said Google has made willful misinterpretation of “fair use” in copyright law to mask outright piracy. 

There is also objection to the one-size-fits-all opt-out forms which will lead to error because the author may have different sets of rights for foreign, electronic, and domestic uses, and Google’s plan, if worldwide, would require separate negotiations of electronic and print rights in each territory or language.  

One final point: the possibility of Google going out of business, or deciding to drop the Google books initiative in the future. This possible situation raises concerns as to the security of the content.   Copyright issues should be addressed through legislation and not through the courts via this settlement. 

D.  Private contract rights abrogated

There is also an objection based on the fact that the only legal method to exploit electronic rights is through individual agreements with the rightsholder.  

E. Privacy issues

The Settlement fails to protect user privacy. Currently, forty-eight states and the District of Columbia have statutes that protect library records from disclosure without a general subpoena or court order, but the Settlement does not address how Google/ Book Rights Registry will protect user privacy.  

The Settlement contains no information on what information Google will retain about the user, how it will use that information, and how it will protect that information’s security.  

Many analysts have noted this “silence” starkly contrasts with the Settlement’s detailed framework and responsibilities for protecting security of digitized copies of books.  

Privacy advocates argue that while competitive pressures typically force online retailers, email providers, social networks, and ISPs to maintain at least a minimal level of privacy protection, no such pressures will exist here.  

The Library Associations ask that Google/BRR develop strong policies to protect personally identifiable information and provide clear notice to users describing these policies.

F.  Intellectual freedom chilled

The Settlement may compromise intellectual freedom. The following points have been made: 

i.  the fear of third party monitoring of reading and searching activity could have a chilling effect on the exercise of the right to read.

ii.  Google’s right to exclude, for editorial or non-editorial reasons, 15% of in-copyright, not commercially available books combined with pressures from state, local, and foreign governments and interest groups may cause Google to suppress access to particular categories of books.  

iii. The host site could privilege some lines of inquiry and hamper others in the exercise of its authority to restrict access if it determines that the person requesting access is not a qualified user or his research is not non-consumptive.  

iv.  The Settlement provides no mechanism for challenging rejection.

20 July 2009 -  The European Commission is reportedly seeking comment on how Google Inc.’s proposed virtual library project — currently being investigated by the U.S. Department of Justice for possible antitrust violations — will affect authors’ and publishers’ copyrights. 

Commission officials will meet with European copyright holders on Sept. 7 to evaluate a deal in which Google will pay $125 million and create a royalty registry to resolve copyright issues over its plan for a digital database offering access to more than 20 million books, according to the Associated Press. 

EC spokesman Oliver Drewes told the AP on Monday that officials wanted to collect the views of European publishers, authors and consumers to help them “draw provisional conclusions on the Google book-scanning settlement.” 

A Google representative pointed out that what’s currently planned by the commission is a fact-finding exercise and not an investigation. 

“It’s important to discuss how we can use the Internet to bring back to life millions of books around the world that will otherwise be lost,” the representative said. “This is at the heart of what we have accomplished in our agreement with authors and publishers. It’s also why we are working in partnership with libraries around the world to digitize their books so they can live forever online.” 

Earlier in July, the U.S. Department of Justice informed a judge overseeing the final stages of Google’s proposed virtual library deal that the agency had launched an official antitrust inquiry, saying it needed more time to evaluate the deal’s potential impact on competition. In a July 2 letter to Judge Denny Chin of the U.S. District Court for the Southern District of New York, Deputy Assistant Attorney General William F. Cavanaugh said that a preliminary investigation into the proposed Google book deal had raised antitrust questions warranting further scrutiny and that the DOJ would be continuing its efforts to evaluate the settlement’s broad market impact. 

Cavanaugh said it was too soon for the department to weigh in on whether the proposed settlement between Google and groups representing authors and publishers, including the Authors Guild, could, as critics have argued, give Google an unfair advantage in controlling and charging for access to millions of digital books. 

However, Cavanaugh told Judge Chin that the DOJ’s preliminary look into the deal — including issuance of civil investigative demands to publishers and ongoing conversations with both settlement parties and critics of the deal — had led antitrust officials to the conclusion “that the issues raised by the proposed settlement warrant further inquiry.” 

Cavanaugh indicated that the DOJ would continue talking to Google, authors’ and publishers’ groups, and other interested parties and keep the court posted on its progress as a scheduled Oct. 7 fairness hearing approaches. 

In May, Google confirmed that it had been contacted by the DOJ and several state attorneys general with questions about the proposed settlement. 

Under the $125 million settlement, announced in October 2008, Google would create a settlement class fund as well as an independent, but Google-funded, Book Rights Registry for writers to track their works and collect royalties. 

In exchange, Google would be able to significantly expand access to millions of books through its online database by granting readers increased access to out-of-print books, creating new means for users to purchase digital versions of in-copyright titles and offering institutional subscriptions to universities and other organizations. 

Free, full-text, online viewing would be made available at certain public and university libraries, essentially giving the libraries major subsidies from Google. 

However, critics have raised objections to the opt-out system proposed for copyright holders, which would require rights owners to specifically reject participation before their books could be pulled, saying it would allow Google unprecedented access to orphaned works, for which no copyright holder can be found, without fear of legal reprise.