The Google Books Deadline is Now

We know you're as excited as we are. Sometime today, Google (GOOG) must submit a new agreement with the Authors Guild to settle a lawsuit over the search giant's plan to scan and digitally archive every single book published and preserved in the history of humanity. As we mentioned last September, the Justice Department issued an opinion that the previous agreement violated fundamental aspects of anti-trust law, and the federal judge overseeing the agreement was likely to reject it without key changes. Google and the Guild got a month to change to revise the agreement, which is due by midnight tonight.

As you undoubtedly know, the Google Book Search settlement deal was a remarkable accident of litigation. Thanks to quirks in the class action, the Authors Guild and the Association of American Publishers were almost incidentally given the right to negotiate with Google on behalf of every single author, publisher, or copyright holder on Earth, even if they have never learned that their publishing rights were being discussed. Aside from the fundamental unfairness of this arrangement, such a deal would give Google an insuperable advantage over anyone who wants to create a similar archive, but doesn't have the legal opportunity to negotiate with every writer on the planet all at once. Which gives Google an effective monopoly on human knowledge, at least in digital form.

So everyone is waiting to see how Google and its partners will try to make their deal more palatable to the courts. And a lot of folks are already launching preemptive strikes, declaring in advance that Google's latest offering will be nothing but a fig leaf to cover the anti-trust bits. Peter Brantley, the director of the Internet Archive and a key opponent of the deal from day one, told the Financial Times, "I assume it will be more a surgical type of change, without changing the core direction."

Meanwhile, Brantley's partner, anti-trust lawyer Gary Reback, sat down with Washington Post tech blogger Cecilia Kang and laid out what he thinks Google must do to meet his approval: Avoid setting up a situation whereby Google becomes the de facto exclusive controller of the only digital archive of the world's knowledge; let authors figure out how their books are being used by Google and allow them to opt out if they want to; and ensure that all would-be researchers, commercial and otherwise, have access to the archive.

Which means, really, that Google must give control of the archive to the feds or some other public entity, or at least treat the archive as a public resource, available to anyone for next to no cost, unless the copyright holders object. That's a pretty tall order; come midnight, we'll know what Google's counterproposal is.