Sources briefed on the matter say DOJ attorneys have contacted Google (GOOG) as well as the Association of American Publishers and the Authors Guild about the antitrust implications of the agreement. Presumably at issue here are concerns over the settlement’s opt-out terms–authors and publishers who don’t opt out have effectively opted in–and the fate of orphan works, books still in copyright but whose copyright owners are unknown.

Orphan works number in the millions and the fear is that this settlement gives Google a powerful blanket license for them. As Pamela Samuelson, director of the Berkeley Center for Law & Technology, recently noted:

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….The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world….Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions….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.

Samuelson concludes that the Book Search agreement as written is essentially a major restructuring of the book industry and an anticompetitive one at that. If that is indeed the case–and Google maintains that it is not–it’s worrisome indeed. Certainly, it’s reason enough for the DOJ to give the agreement a good once-over.

“RealNetworks took this legal action to protect consumers’ ability to exercise their fair-use rights for their purchased DVDs,” the company said in a statement. “We are disappointed that the movie industry is following in the footsteps of the music industry and trying to shut down advances in technology rather than embracing changes that provide consumers with more value and flexibility for their purchases. For nearly 15 years RealNetworks has created innovative products that are fully legal, great for consumers, and respectful of the legitimate interests of content creators and rights holders. RealDVD follows in that tradition. We expect to successfully defend our right to make RealDVD available to consumers and consumers’ rights to use it.”

We’ll see, I guess. Clearly the silly little “RealDVD is for saving a DVD you own” disclaimer attached to the software isn’t going to cut it with Hollywood. I imagine we’ll be hearing from the Motion Picture Association of America before the day is out.

We do a good job of educating users about copyright law.”

–-YouTube CEO Chad Hurley, D5 Conference, 2007

I was very interested to hear Chad and Steve talking about educating consumers about copyright earlier today. Perhaps I’ve given them a graduate degree in copyright law.”

–Viacom CEO Philippe Dauman, D5 Conference, 2007

Google’s apparently finished “educating users about copyright law” and has moved on to the far more important business of making sure not to run afoul of it. After a year of delays and excuses, the company this morning uncrated an antipiracy system for its YouTube video-sharing site.

YouTube Video Identification, as Google colorfully identifies it, matches videos uploaded to YouTube against a repository of legitimate master videos provided by their owners. In the event of a violation, the system notifies the copyright holder, who can then request the video’s removal, its promotion or its ad-supported syndication. Yes, ad-supported syndication. “Like many of these other policies and tools, Video Identification goes above and beyond our legal responsibilities,” YouTube Project Manager David King explained. “It will help copyright holders identify their works on YouTube and choose what they want done with their videos: whether to block, promote, or even—if a copyright holder chooses to license their content to appear on the site—monetize their videos. In implementing this technology, we are committed to supporting new forms of original creativity, protecting fair use and providing a seamless user experience—all while we help rights owners easily manage their content.”

Ah. A “Don’t vaporize, monetize!” program (see “New From Google Labs: Google Big Friggin’ Video Ad”). Surely, just the sort of thing Viacom was hoping for when it filed that $1 billion copyright infringement suit/“mistake” against YouTube earlier this year. Well, it’s a step in the right direction, anyway. Said Viacom general counsel Mike Fricklas, “We’re delighted that Google appears to be stepping up to its responsibility and ending the practice of profiting from infringement.”

Time Warner spokesman Ed Adler offered similar sentiments. “We’re encouraged that they recognize the need to recognize copyright,” he told the Los Angeles Times. “I’m told by our general counsel that there’s still some work to be done before we would say it’s totally sufficient to protect copyright, but we’re encouraged so far.”

But not for long. Because Google’s system doesn’t prevent copyrighted content from being posted to YouTube, does it? But it may well prevent media companies from suing over it.

According to a new report [PDF] from the Computer and Communications Industry Association, industries that rely on copyrights to drive their business contribute $1.3 trillion in annual revenue to the U.S. economy. Industries that rely on “fair use” exceptions to those copyrights contribute $4.5 trillion annually.

“Much of the unprecedented economic growth of the past 10 years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner,” said Ed Black, president and chief executive officer of the CCIA, who cautioned against “unintended consequences of perhaps well-meaning, but overbroad copyright regulation.”

Which is about what you’d expect from a computer-industry lobbying group whose membership includes companies like Google and Yahoo, both of which have benefited from unlicensed usage of copyright materials. But even discounting for trade group overstatement, the idea that fair-use-dependent industries account for a sixth of the nation’s GDP seems ludicrous, as Nick Carr caustically notes over at Rough Type.

Even by the woeful standards of the bespoke research industry, this study is a crock. It’s not just bad; it’s absurd. What the authors have done is to define the ‘fair-use economy’ so broadly that it encompasses any business with even the most tangential relationship to the free use of copyrighted materials. Here’s an example of the tortured logic by which they force-fit vast, multifaceted industries into the ‘fair use’ category: Because ‘recent advances in processing speed and software functionality are being used to take advantage of the richer multi-media experience now available from the web,’ then the entire ‘computer and peripheral equipment manufacturing industry’ qualifies as a ‘fair-use industry.’ As does the entire ‘audio & video equipment manufacturing’ business. And the entire software publishing industry. And the entire telecommunications industry. And–hey, why not?–the entire insurance industry. Stock markets and commodity exchanges? Sure, throw them in, too. … Can’t industry groups make their points without stretching the truth beyond recognition and, in the process, insulting everyone’s intelligence? Fair use deserves better.”