In testimony before the House Judiciary subcommittee, U.S. Register of Copyrights, Marybeth Peters criticized the proposed agreement between Google and the Author’s Guild, which would allow Google to create and maintain a vast digital library of scanned books. Specifically, this settlement would give Google the right to digitize millions of books, including “orphan books” (books for which there is no clear copyright owner), without permission from copyright holders. Consequently, Google would be shielded from liability and would establish a registry that would sell access to books to libraries and individuals. Revenue would be split among Google, authors, and publishers.

Ms. Peter’s testimony, which could prove to be a crucial factor in the settlement agreement’s fairness hearing on October 7th, argued that this registry created a back-door for Google to get around copyright restrictions by allowing them to sell books without prior author consent. She equated this situation to that of a compulsory license, in which the rights holder is forced to license his/her work to others, as Google would now have the right to display book text and control the sale of downloads. Most importantly however, Ms. Peters claimed that this settlement agreement usurped Congressional authority because only Congress, not the courts, can enact such licenses.

The U.S. Copyright Office originally favored this agreement, but later changed its view because the class action settlement addressed future behavior instead of just past actions. Ms. Peters stated, “[t]he settlement would bind authors, publishers, their heirs and successors to these rules, even though Google has not yet scanned and may never scan their works.” Google would be selling and displaying out-of-print books without permission and without fear of legal redress.

Google, who would pay $125 million to settle the case subject to Court approval, claims that the agreement would let authors retain control of their books because authors can always request to have their work taken down, and would expand access to millions of out-of-print books. Furthermore, in an attempt to cure any anti-trust concerns, Google said that they would allow rival retailers to sell online digital copies of out-of-print books that Google had scanned from libraries.

Adam Goldman contributed to this enrty.