We have covered many of the search ad keyword lawsuits aimed between competitors or directly at the search engines in the past. Nowadays, it seems like a new suit around this topic is filed weekly. Typically these suits go after trademark violations and the like, but a new suit is focusing on a privacy legality.

Suit over search-engine keywords tries new angle from the Associated Press reports Habush Habush & Rottier is suing Cannon & Dunphy for buying their name on Google and Bing. Habush Habush & Rottier is taking the privacy angle, where in Wisconsin there is the “right-to-privacy statute” that prohibits the use of any living person’s name for advertising purposes without the person’s consent. Yes, both firms are based in Wisconsin.

Robert Habush, the president of Habush Habush & Rottier said:

We believe this is deceptive, confusing and misleading. If Bill Cannon thinks this is a correct way to do business he needs to have his moral compass taken to the repair shop.

Cannon told the AP:

This is equally available to Habush if he weren’t so cheap to bid on his own name.

I am no legal expert, but this case does seem unique from all the other legal cases on search ads.

The legal briefs were flying fast and furiously as all the interest groups, supporters and competitors rushed to meet a deadline for third parties to weigh in on the Google Book Search settlement. The NY Times quotes legal scholars who argue that the “quality” and volume of the filings in the case will make it challenging for the judge to quickly resolve the matter. In some respects this is a “novel” situation in which a great deal is at stake for the involved parties and book publishing more broadly.

A settlement hearing is scheduled for October 7.

Scores of companies, interest groups and even governments line up on each side. Accordingly a range of competing values and interests will need to be balanced: the agreement of the immediate parties, the larger public interest, competition in the market, copyright law of other nations and so on. Separate from the court proceeding there’s a hearing tomorrow in the House Judiciary Committee about the matter.

For its part, Google recently established a site to show who supports the settlement. Among others, Sony Corp. (which has a deal with Google and competes with Amazon in the eReader market) and the Authors Guild also support the settlement. The latter slams settlement opponent Amazon as a book industry monopolist and argues the settlement fosters competition.

There’s no question that books will be digitized and put online; the momentum behind it is growing. The question is how will that happen, who will control the process and who have access to the spoils of those efforts. Microsoft, which abandoned its own book scanning efforts some time ago, claims that the Google settlement amounts to an illegal joint venture that will provide the parties to the settlement with special and exclusive rights and privileges not permitted to others.

Antitrust lawyer Gary Reback, who filed a brief on behalf of the Open Book Alliance, a group that includes Google opponents Microsoft, Yahoo and Amazon, argues that the settlement is currently “illegal” but could be cured if the government requires Google to license the database of scanned books to third parties (e.g., Microsoft, Amazon, et al) for a “nominal” fee. The irony is that Reback was instrumental in the Microsoft anti-trust litigation several years ago. He’s representing the group that includes Microsoft, using similar arguments against Google. According to the Wall Street Journal:

In an interview, Reback likened the misdirection to Microsoft’s posture with software developers in the past. He said that Microsoft had years ago told software developers that the company wouldn’t take advantage of its own applications on its Windows Operating System platform over theirs–but later backtracked. “They changed their position and had an economic consequence to the industry that became one of the main animating effects of the lawsuit,” Reback said, referring to the Justice Department case that Microsoft settled.

The “misdirection” referred to in the statement above is Google’s alleged “misleading” of publishers “by years ago stating that it was scanning books to create a ‘card catalog’ of works before changing its mind and getting into the digital book-selling business.” Do the arguments of the Book Alliance members, which abandoned their own book-scanning efforts and which now apparently seek access to the Google books database, amount to trying to get something for nothing? What is fair and reasonable here?

This notion of forcing Google to license its database  for a “nominal” fee to competitors is unlikely to prevail, although the notion of providing greater access to the database will probably resonate with the court and legislators. Trying to find a fair solution when persuasive arguments are being made both for and against the settlement (but most parties are self-interested in one way or another) will be particularly challenging.

There are several reports (see New York Times and Wall Street Journal) that Microsoft, Yahoo, and Amazon will join a coalition aimed at challenging the Google book settlement.

Peter Brantley, director of the Internet Archive, which is putting the coalition together, tells the Wall Street Journal that coalition members want the agreement revised, but aren’t necessarily pushing to have it blocked.

The settlement stems from a lawsuit that claimed Google’s practice of scanning books and making them available online violated the copyrights of authors and publishers. Google settled the lawsuit last October, and a federal judge has already given tentative approval of the settlement. But, in response to growing opposition from authors’ groups and others in the publishing industry, final approval of the settlement was delayed until a Fairness Hearing scheduled for October 7th.

The new coalition stepping up now to challenge the agreement includes Microsoft, Yahoo, Amazon, and “a number of other library associations,” according to the Wall Street Journal. The New York Times received confirmation from Microsoft and Yahoo of their involvement, but not from Amazon. The Times also says the group is tentatively being called the Open Book Alliance. It’ll be formally announced within a couple weeks.

This isn’t Microsoft’s first involvement in fighting the Google book settlement: We reported in April that Microsoft was helping to fund opposition from New York Law School. The US Justice Department has also confirmed its own investigation into the settlement.

It’s probably fair to say that the French have a love-hate relationship with American culture, companies and institutions. (The same could be said for some Americans; remember “freedom fries”?) The latest expression of the negative side of that equation in the Gallic world is disappointment over an apparently impending agreement between the French national library and Google to allow the latter to scan its books. The UK’s Times Online has the story of what one french journalist described as a movement by the library from “resistance to collaboration”:

The Bibliothèque Nationale de France (BNF) was reported to be on the verge of a deal with the Californian giant under which Google’s digital library would get even larger. “Google has won,” said the front-page headline in La Tribune.

According to the article the deal was a pragmatic concession to the cost of maintaining a separate and competing project:

The decision was purely financial, said Denis Bruckmann, director of collections at the library — which will be joining 29 other leading libraries in opening its shelves to Google’s project, including Oxford’s Bodleian. France provided only €5 million a year for digitising books for Gallica, the national digital library, yet the national library needed up to €80 million (£68 million) just for its works from 1870 to 1940, he said.

Back in the US, another party has lined up against the Google Book Search Settlement, Scott E. Gant, a lawyer-author and member of Washington law firm Boies Schiller & Flexner. He intends to file a “sweeping objection” to the settlement today. The reason that his involvement may be significant is that he’s advancing new legal theories and arguments against the deal:

Unlike most previous objections to the project, which focused on policy issues and recommended modifications to the settlement, Mr. Gant argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.

Legal experts, who had not seen the filing but heard a description of it, said it could be the most direct attack on the agreement so far.

The embattled Book Search Settlement is also the subject of a formal US Justice Department anti-trust inquiry. As an aside the Boies of Boies Schiller & Flexner is David Boies, the lawyer who led the successful anti-trust case against Microsoft and who lost the presidency for Al Gore in unsuccessful arguments before the US Supreme Court in 2000.

A new Columbia Journalism Review opinion piece argues persuasively (in my view) that Google “owes” something to traditional journalism and news organizations. Google, typically, is a stand-in for “the internet” in these discussions. This notion of responsibility to publishers is unpopular among bloggers and Internet denizens more generally.

I tend to fault news organizations for not being faster, smarter and more creative in their online efforts. It’s also the case that the Internet as a publishing and distribution platform has disrupted traditional media models across the board. And pointing the finger at others, such as Google, tends to obscure the fault or responsibility that publishers should accept for their own missteps, failures and omissions.

Having said all that, I found this discussion in the article pretty compelling:

On Saturday afternoon, February 7, 2009, SI.com, the Web site of Sports Illustrated, broke a huge story: Alex Rodriguez, the mega-rich Yankees star, had taken performance-enhancing drugs while playing for the Texas Rangers. Sports Illustrated released the story on its Web site rather than in the magazine, according to the editors involved, in an effort to enhance SI.com’s standing as a destination for fans increasingly conditioned to getting sports news online. Within hours the story was everywhere, but if you went through Google to find it, what you likely got instead were the pickups that appeared elsewhere, summaries or even rewrites, with attribution. Most galling was that The Huffington Post’s use of an Associated Press version of SI’s report was initially tops on Google, which meant that it, and not SI.com, tended to be the place readers clicking through to get the gist of the breaking scandal would land.

This paragraph argues in essence that the source of a story ought to get “credit” in the algorithm vs. secondary sites or pieces that simply summarize or link to it. There’s probably no way to do that without human editors and no way to integrate humans directly into the Google.com algorithmic results. You could do it for Google News; Techmeme has human editorial oversight, so does Yahoo News, as well as most other online news sites. While Google News is often the target of criticism of embittered publishers it’s not the top news destination online.

Neither the “Google is a digital vampire” camp nor the “Google has no responsibility to publishers” camp are entirely correct. There is a middle ground that still needs to be defined. The Columbia Journalism Review article tries to grapple with what that middle ground is by suggesting a set of values and principles: fair conduct, fair use and fair compensation.

Fair conduct in the author’s mind is giving proper credit and visibility to the original source (as in the quoted example above). Fair use is about defining how much of a piece can be excerpted before payment must be provided to the publisher or content creator. This is a difficult and important issue.

Some content creators will be happy to disseminate their work for free. Others will not. The Associated Press is somewhat hysterical about fair use and has attempted to redefine the standard in a very narrow way that exacts payment for very brief quotes and excerpts. The law doesn’t provide any clear guidance but guidelines (that are reasonable and not overly restrictive) should be worked out — somehow. It will probably take litigation unfortunately.

Finally, and perhaps most importantly, the notion of “fair compensation” presented in the article is equally difficult. To some degree it’s tied to the fair use debate. Separately I’ve argued that Google should be doing more revenue sharing with publishers and content producers on money generated from ads on Google News. And, as everyone knows, newspaper publishers are almost uniformly going to re-introduce pay walls on their sites. This will probably not succeed as a revenue strategy but I don’t fault them for trying it. At this point they need to try everything.

The internet has dramatically changed the media landscape — for better and worse — and nothing will erase that. However, it’s also pretty glib to argue that anyone is free to put up ads against news summaries and profit from the content creation of traditional publishers without some form of compensation to those entities.

I think the framework presented in the article is a good starting point for some collective debate on what’s fair. Making that concrete is the challenge and there needs to be some mechanism to define practical standards that allow free discussion and debate of topics but also enable reasonable compensation of content creators as well.

It’s not really a surprise or even news that the US Department of Justice (DOJ) confirmed yesterday it was formally investigating the terms of the Google Book Search settlement. This was known as far back as April and essentially confirmed last month by various publications reporting that formal requests (called “civil investigative demands”) had been issued to book publishers by the DOJ.

What happened yesterday was that the DOJ provided procedural notification to the court that the US is exploring the potential anti-trust dimensions of the Google settlement. The so-called “fairness hearing” to finalize the terms of the settlement will happen on October 7 and the US has until September 19 to “present its views in writing.” That’s not a lot of time.

What did the DOJ say in its two paragraph letter notifying the court of its formal investigation? Here’s the body of the letter:

The Sherman Anti-Trust Act is mentioned in the first paragraph of the government’s letter. The Sherman Act (and related subsequent legislation) is intended to promote competition and prevent consolidation of power and control over markets. For example, Microsoft was found in 2000 to have violated the Sherman Anti-Trust Act for too closely tying Internet Explorer to the Windows operating system.

One of the central questions the DOJ is exploring in its review of the Google Book Search settlement is whether Google gains exclusive rights or benefits to which other parties don’t have access. Some legal scholars have argued that Google does gain what amounts to a monopoly over so-called “orphan books,” books that are out of print but not yet in the public domain and where copyright owners are effectively impossible to locate.

Google has repeatedly said that the agreement is non-exclusive but has not discussed that contention in precise detail. Questions in the anti-trust investigation will include how much control Google has over the “corpus” (material scanned), over pricing of book sales and to what degree third parties can gain access to the material. (New York University is holding a conference on the Book Search Settlement for interested parties on October 8, a day after the fairness hearing.)

Unlike the Google-Yahoo paid search deal that Google walked away from to avoid a legal battle with the DOJ, the Book Search Settlement is different. Because of the underlying lawsuit Google cannot simply walk away here. Putting aside some of the less substantive issues (e.g., whether the attorneys fees are too high) as a basic matter there are essentially only two potential outcomes: approval of the existing settlement or modification of selected terms. If I had to bet I would bet that we will see some sort of modification further expanding third party access to the scanned material.

You can read the settlement itself or take a look at the public-facing Google Book Settlement website for rights holders and publishers. For additional context and background here’s our “library” of Google Book Search stories.

Music file sharing services have always been a mutant species of search, offering different tools and methods for finding and listening to tunes. Napster was one of the first and most infamous, and its widespread adoption caused the recording industry to panic, suing both the company and thousands of its users. That hasn’t stopped the practice of sharing music—in fact, there are dozens if not hundreds of ways to find and listen to music online today, both legal and otherwise.

In a new report, The State of Music Online: Ten Years After Napster, the Pew Internet Project traces the evolution of online music, and the changes that have been forced on musicians and the recording industry. While the history is fascinating, Pew’s conclusions are notable for anyone accessing “free” music using peer-to-peer file sharing systems, music search sites like Songza or SearchMe Music, or even streaming “radio” stations like Pandora or Last.fm.

The good news is that the “suits,” as Pew described them, have dropped most of their heavy-handed tactics against users. However, they’re still hard at work trying to keep control of musical content, and getting people to pay for music. According to the report:

“Through digital fingerprinting and other tracking technologies, the record labels are monitoring copyrighted content as closely as ever and are counting on two major new strategies to help them: First, is a landmark partnership with internet service providers to monitor file sharing activity and potentially cut off service to the worst offenders. Second, is a series of partnerships with universities that would incorporate music subscription fees (predicted to be less than five dollars per student) into student tuition bills. If successful, a similar ISP-based fee could be implemented for the general public.”

It’s a worthwhile read.

Discussions between Google and the Associated Press about renewing their content licensing deal continue, I assume, but all’s quiet recently on the negotiation front. I want to disrupt that. It would be wrong in this particular case for both parties to reach a deal where “terms are not disclosed.” The future of journalism, as well as Google’s own reputation, deserves for things to open up.

After threatening a lawsuit against Google several years ago, AP won its first licensing deal with Google in 2006. Google was at pains to stress this wasn’t a deal designed to gain the rights to merely list AP stories. It was supposed to cover more “new” and “extensive” uses of AP material.

Bull. Today, you can still search at Google and find that it fails to list just one “originating” AP story in many cases. Sure, Google hosts AP stories, but it wasn’t like Google set out trying for that goal. It was just as happy as pointing outward. The bottom line was that the deal was a nice wrapper to go around getting the AP off Google’s back.

Now the AP’s been on again that without the right deal, it’ll pull content from Google. Technically, how they’ll do that is absurd. Will the AP robots.txt out its entire site? And ensure that all of its members do the same for any AP story? More likely, it would fall back to the lawsuit front.

But what’s the right deal? What’s Google paying the AP now, and what happened in three years that this amount wasn’t enough? Since the terms were never disclosed, the public can’t judge.

And the public needs to judge, especially as newspapers have secret stealth meetings (which involve AP CEO Tom Curley) which involve sessions like:

Journalism Online: Presentation on proposed service to charge for access to newspaper content and to license that content that (sic) online aggregators

(For more on the stealth meeting, also see the Nieman Journalism Lab report and Techmeme).

See, some in the newspaper industry persist in the assumption that merely listing headlines and summarizing stories is a copyright offense. The AP itself wants to charge for this and already has guidelines that make some people think they might be violating fair use laws when they aren’t (see Do Newspapers Owe Google “Fair Share” Fees For Researching Stories?).

In other quarters, we have people like Forbes.com CEO Jim Spanfeller pulling $60 million dollar figures out of the air, about what he thinks Google owes him and suggesting that Google is helping to destroy “one of the core building blocks of our democracy.”

Since so much is at stake here — democracy itself! — it doesn’t seem right that Google and the AP will reach a deal that no one gets the details too. Shouldn’t all journalistic enterprises, be they traditional or not, understand exactly the value Google’s willing to pay to one with a big mouth and a staff of lawyers?

Moreover, shouldn’t Google be taking a stand on behalf of the majority of publishers who I’d argue have no problem with aggregators or search engines listing their content. A small number of publishers with inflated opinions about their importance are pushing for (and winning) concessions to compensate for their dying business models and lack of foresight. Aren’t the wrong people being rewarded?

You have to appreciate the rich irony. I can’t get the AP to talk with me at all (their execs are all busy, I’ve been told). When their CEO attends a stealth meeting, it’s not even the AP that first reports about it despite the AP being so convinced that they originate stories. Instead, the AP story points to an Atlantic blog post that broke the news. And Google, which touts being open any time it is convenient, is being hush-mouthed here.

Google needs to step up. Defend the “fair use” rights it believes it has on its own behalf and those of the greater web ecosystem. Alternatively, negotiate a deal to solve its AP problem but do it openly, so everyone else understands what exactly is being given up.

Apparently talks between Google and the Associated Press aren’t going well, or so says Forbes today, with AP chief executive Tom Curley threatening to take his content and play elsewhere.

Where that will be is hard to say. Part of the AP’s original issue with Google was that AP’s own member publications would reprint AP material (which they’re allowed to do as members), causing there to be no single source that could benefit from AP traffic.

Google News Now Hosting Wire Stories & Promises Better Variety In Results covers how after a 2006 deal was struck, AP stories started being hosted on Google itself, as AP wanted (and has long hosted similarly at Yahoo). That would have seen to have solved the AP’s concerns, but apparently not.

The AP wants more money, it seems. How much more is uncertain. Terms of the original deal were never disclosed, and the best I’ve ever seen was Google CEO Eric Schmidt saying for the first time in April that it was a “multi-million deal.”

Part of AP’s current plans are to create its own news portal, as both PaidContent.org and AllThingsD have covered. From AllThingsD:

This has been construed in some quarters as a plan to create a search engine or news portal. But it’s really just an attempt to upgrade the AP’s search engine optimization strategy–that is, trying to get its stuff to show up higher on Google’s (GOOG) search results. It will do that via “search pages,” or “topic pages,” which are par for the course in the Web world. Check out this New York Times (NYT) page  on Somali pirates, or this Huffington Post page on newspapers, and you’ll get an idea of where the AP is going.

If the search page plan works, the pages will be generating plenty of page views when people land on them, and it’s possible that the AP will sell ads on that inventory, Kennedy says. But their real function is to shuttle searchers to the original source material from the AP’s members.

I joked on Twitter that if you’re hoping to suck in Google traffic, it’s generally not a good idea to advertise that fact. Reason? As some point, Google will review its listings, recognized that listing 10 “topic” pages from all the publishers out there probably isn’t providing a diverse results set and change up the algorithm.

More important, Google’s web search quality team — which has nothing to do with Google’s business folks — generally does not take well to people suggesting they’re somehow going to own the search results. AP content probably will start ranking well for some things, but if it started showing up Wikipedia-style for everything, people outside the AP would start complaining about favoritism.

That’s what makes the Forbes piece so puzzling. AP chief executive Tom Curley (who the AP told me was “unavailable” to talk; nor after nearly two hours, does anyone else seem available) sounds naive enough to believe he can force Google into a deal that would give AP preferential treatment in regular search results:

Search rankings on Google News give priority to recognizable news brands like the AP. But Google applies no such algorithmic discretion to general searches. The broader search rankings spread AP content out across the Web, says Curley, encouraging misappropriation by other sites. Curley wants Google to “protect content from unauthorized use and pay us for the longtail.” By “longtail,” Curley refers to the thousands of small sites that collectively drive vast herds of traffic using AP content.

I’ve bolded the key part. Look, I don’t know who — if anyone — is doing SEO for the AP or providing them with advice. Judging from page titles alone, like this key press release about its content enforcement initiative that has no title (a key search ranking factor), they could use some help. And from the statement above, Curley either doesn’t understand how Google works or gets it and is purposely misspeaking. Or perhaps he was misinterpreted. If he’s ever available to talk, I’ll ask him myself.

Google News doesn’t give “recognizable news brands” a boost. I’ve never seen them say this, nor have I seen it actually happen in real life. Google News includes large and small news sites and lists a diverse collection of stories. I know lesser-known news sites do well because I run one of those. At times, I can have a headline story that beats the AP or other mainstream outlets in Google News.

As for the web, actually there’s a considerable debate on whether Google HAS given a brand boost recently (see Google’s Vince Update Produces Big Brand Rankings; Google Calls It A Trust “Change”). Certainly Google CEO Eric Schmidt has been stirring up the pot by repeatedly remarking what a “sewer” the internet is and how “brands” will sort it out.

Certainly if Google starts ranking brands better than other content, they’ll have issues. Brands do not equal trust. Enron had a brand; AIG has a brand — being a brand doesn’t mean that you are more trustworthy or deserve an automatic ranking boost. From my perspective, Google’s algorithm has continued to change over the past few years to reward trusted sites. Many brands have sites that Google has decided are trustworthy, but some don’t.

Curley is foolish if he thinks he’ll browbeat Google into somehow changing its algorithm in web search to reward AP as part of this deal. Google’s search quality engineers wouldn’t stand for that, any more than a journalist would stand for a newspaper CEO marching into a newsroom and demanding that certain advertisers get favorable stories written about them.

If the AP wants traffic to its own site, actually hosting content there is a good first step (and something I wrote about back last year, in Hey AP! How About Running A Real News Web Site?). If they’d done that years ago, they’ve have already earned trust in Google’s algorithms. Instead, they’re going to have to earn that from scratch just like everyone — by having content that lots of people point at with links.

Therein lies another challenge they face. People aren’t going to link to your content when you’re threatening them with your own made-up rules of what you consider fair use, as the AP has been doing and recently became more aggressive about.

In the end, perhaps the AP will walk away from Google. It’s always had the option to block off of its content from being listed. The issue remains that its member publications might continue to take AP stories and post them to the web. AP might try to sue Google for listing this content, but I’d expect legally, it would be the member publications that would be held accountable.

For more, see related discussion on Techmeme.

For a longer look from me at recent newspaper-Google issues, see my Google’s Love For Newspapers & How Little They Appreciate It post.

Postscript: Be sure to watch Tom Curley in this interview with Charlie Rose, where both he and Arianna Huffington talk about the future of news:

It’s remarkable on several fronts:

1) The AP believes that it can divide news content into headlines, lead paragraphs and full stories, each of which can be licensed for use. The essence of being listed in any search engine — not just Google and not just Google News — has been to use the title tag (usually also the headline) of a web page.

Does AP really believe it might strike deals to explicitly give search engines permission list their pages using title tags, when this has been commonly done for over a decade and without any serious legal challenge? And will it put the RSS genie back in the bottle, when RSS feeds typically explicitly offer titles and summaries to the public?

2) The AP wants to create a “newsmap” that takes people to the “authorative source” of a story — to show “who broke the news.” The implication here is that only the AP or its members, or other mainstream publications that AP wants to enlist, originate news.

Much news is originated from non-mainstream publications (yes, such as blogs), that the mainstream press works off of. There are plenty of examples where these non-mainstream publications don’t get credit as originating sources. Do they get included in the newsmap? If not, is the AP effectively doing the same type of robbing that it complains happens to it?

3) Curley asks who is going to pay for the “hard work” and Freedom Of Information Act requests and other types of in-depth journalism. That’s a good question, and I have my own concerns about that (as my Blogs & Mainstream Media: We Can & Do Get Along post covers). But again, it also suggests that only the mainstream media is equipped to do this.

They aren’t, nor are they the only source of hard work journalism. They do, however, often get better access than non-mainstream publications based on what they built over the years.

Perhaps the mainstream publications should give up some of their reserved seats in the White House press room to bloggers who cover politics to wider audiences than some newspapers currently have?

Perhaps with that better access, those bloggers might earn even more traffic, more revenue and be able to spend more time on further hard work journalism, not hindered by the fact that their old business models don’t fit the new publishing world.

Perhaps we might even see some online publications win Pulitzers? See my Time For Google To Fund An Online-Only Version Of The Pulitzers? post for further thoughts on this, as well as how when it comes to online news breaking, often various publications work together to undercover a story, rather than it having to be a huge solo effort.

4) I came away left with the feeling that Curley has no real idea what bloggers and online journalists do. There’s a stereotype the AP seems to have formed, and it’s not an attractive one. I imagine the AP view is that we’re all sitting in basements somewhere in our pajamas scanning Google News for stories from the AP that we merrily reprint without adding value or original content to (I’m actually in sweats today; normally if it’s warmer, I’m in shorts. I rarely wear pajamas to my home office, which isn’t in a basement).

I understand the serious business issues they face and the problems with content theft (which has happened to online publications for over a decade, by the way). But I desperately feel like various AP executives need to get out of their offices, get out of the executive meeting rooms at their member publications and instead roll up their sleeves and visit some actual bloggers at online publications in actions. I’ve been in newsrooms. I came from a newsroom. I know the work that goes on there. I don’t think the AP folks have any clue of the real honest hard work that goes out outside the newsroom. They should get that education, if they really want to form an educated business model for the future.

5) Finally, what exactly is the AP getting from its current deal with Google? We’re hearing it wasn’t a fair shake. OK, cough up, AP. Publish the terms. Tell us exactly what you agreed to in the first place. You’re a news organization; you’re making this an issue, so it’s odd we don’t know your current terms, in order to judge them.

By the way, if you are from a newspaper, you might also want to see my Quick Tips For Newspapers & SEO post.

After skirting one antitrust action involving a proposed ad deal with Yahoo, Google may be facing a new one — this over the proposed settlement of the lawsuit involving Google Book Search.

Both the New York Times and the Wall St. Journal are reporting that the US Department of Justice is examining the terms of the settlement, to see if it would give Google too much power over digitizing books.

Earlier today, the presiding judge in the case granted a four month extension on the deadline for authors and other involved parties to opt-out of the proposed settlement. In the weeks since the settlement terms were announced, there has been growing criticism of the proposal.

One argument against the deal is that competitors wouldn’t be able to compete, because the class-action settlement would grant Google rights that others would have to negotiate one-by-one: As Pamela Samuelson wrote:

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them….

Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Of course, Google already has a considerable book search service that exists from scanning works that aren’t in copyright or are in copyright but included through the explicit permission of authors. Anyone one willing could compete on both fronts — if they are willing.

That leads to Microsoft. Ironically, it was one of the chief competitors to Google in the book search space. It scanned out-of-copyright works and never pursued deals with those authorized to grant permission for works in copyright. Then it pulled out of book search last year, deciding it wasn’t “commercial” enough to pursue. Microsoft is now funding some of the opposition to the proposed lawsuit settlement.

Potentially, the terms could be renegotiated to solve concerns the Dept. of Justice and/or affected parties might have. And potentially, Google could choose to go to trial, sticking with its original argument that the act of scanning books and showing short descriptions is not a copyright violation.

In contrast with the Yahoo action, which Google overtly went after, it’s hard to argue that Google somehow set itself up for a potential antitrust action in this case. The settlement terms came about as a result of a lawsuit, and through negotiations with those who supposedly were working in the interest of authors and publishers. Now, more and more are speaking out that those interests are not properly being looked after and question the larger implications of a deal in general.

For related discussion, see Techmeme. For past coverage of Google Book Search from us, see our Google: Book Search archives.