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A million University of Minnesota books will be digitally copied by Google under a plan to put the world's libraries online. But most of the book copies are being locked in an archive, the digital equivalent of gathering dust.

No one will be able to read these digital books -- at least for now -- because of a five-year-old copyright lawsuit against Google. Five million books at the University of Michigan are threatened with the same fate.

It's the unlikely result of Google setting out in 2004 to digitize 15 million books from the world's major libraries within a decade. It became known as the Google Books project, and it aimed to preserve library books and make them accessible.

"The vast majority of books ever written are not accessible to anyone except the most tenacious researchers at premier academic libraries," Google co-founder Sergey Brin, wrote in the New York Times last November. "Inevitably, the few remaining copies of the books are left to deteriorate slowly or are lost to fires, floods and other disasters."

The project clashes with copyright law, which protects authors and publishers from the theft of their work. Books published before 1923 are out of copyright and can be copied, said Jack Bernard, a law professor and assistant general counsel at the University of Michigan who has been a close observer of the settlement.

Books published after that are a different matter. Copyrights remain in effect for the author's lifetime plus 70 years. Unless authors or heirs -- many of them unknown to the libraries -- endorse the digital copying of these works, the scanned books can't be read by anyone.

"We're talking about rights being held by an author's great grandchildren," said Wendy Lougee, the head librarian at the University of Minnesota, which recently sent its first truckload of books to be digitized by Google.

"Providing access to all those books would benefit the scholarly and student community enormously," Lougee said. "Once information becomes digital it gets used an exponentially greater number of times."

Google project at risk

The copyright issue has proved to be a bigger barrier than university librarians expected, and now threatens to derail the Google Books project.

Google was sued in 2005 by authors, represented by the Authors Guild, and book publishers, represented by the Association of American Publishers. The two sides reached a settlement in 2008, but a federal court never approved it because of concerns raised by government regulators, public interest groups and Google's rivals. An amended settlement reached last November is before the court, though it also faces opposition.

For now, scanned library books that remain under copyright can't be offered in digital form. Google can show snippets of the books via its online search engine, but not the whole text. Universities that sent books to Google get the originals back, but the digital versions of copyrighted books can't even be offered to library patrons unless the settlement is approved.

Lougee estimated that 700,000 of the 1 million University of Minnesota books that Google intends to digitize will be inaccessible, held hostage by the Google lawsuit. These so-called "orphan books" are copyrighted but the copyright holders -- authors or their heirs -- have slipped out of sight over the years. Under the proposed settlement of the Google suit, a huge effort would be made to find these copyright holders and ask them to agree to having their books digitized. Until then, the orphan books can't be read in digital form.

"A lot of our books are caught in this, and we don't know how long it will last," Lougee said.

The books are still being scanned. The University of Minnesota, other Big 10 universities and the University of Chicago are cooperating to create a vast digital archive of all the member-library books that Google is scanning. So far the archive has 6 million books, nearly all of them scanned under the Google Books project, said John Wilkin, an associate librarian at the University of Michigan and executive director of a trust that controls the digital books.

Google deserves credit for its role in preserving the world's libraries, Bernard said.

"At the University of Michigan, we were digitizing all of our own books faster than any other research library," Bernard said. "But at the rate we were going, it would have taken us about 1,000 years. Google will do it in less than 10 years."

Waiting on a judge

Everyone involved is waiting to see if the Google Books settlement will be approved.

Under the amended settlement, Google would pay authors and publishers of copyrighted books $125 million plus future revenue from digital book sales and library digital book subscriptions. Google also would spend money to locate the unknown copyright holders of orphan books.

U.S. District Judge Denny Chin of the Southern District of New York is widely expected to act soon because he has been appointed to the 2nd U.S. Circuit Court of Appeals. He could rule on the settlement or leave it to another judge. Any decision faces a likely appeal.

Microsoft has argued that the settlement "would give Google a de facto exclusive license" to orphan works, changing copyright law without the consent of Congress. Amazon.com alleged the settlement not only would be unfair to authors, publishers and others, but would allow Google to fix prices for the digitized books unless a copyright holder sets a different price.

Public Knowledge, a Washington, D.C.-based public interest group, praised the Google Books project for spreading knowledge but said Google shouldn't get a monopoly on orphan works. The Electronic Frontier Foundation, based in San Francisco, objected that Google could track people's digital reading habits.

The University of Minnesota has no say in the outcome of the case because it and the other universities are only bystanders in the lawsuit, not participants. But Lougee is quick to point out the benefits of a settlement: Digitized university books could be purchased by consumers (initially from Google, but eventually from other publishers), and libraries could buy digital subscriptions that would allow patrons to read digital books online without purchasing them.

Bernard, of the University of Michigan, said the settlement would create a perpetual market for the books. "They'd never be obscure," he said.

Many of the books are disintegrating with age, he said.

"We can fight about this copyright issue for a long time as long as the books are preserved," Bernard said. "The public good is that we are not letting these works disappear."

Steve Alexander • 612-673-4553