Saturday, September 19, 2009

Justice Department Disapproves Google Book Settlement

On September 18, 2009, the U.S. Department Of Justice advised the Federal Court that it should not accept the Google Book Settlement in its current form. This almost certainly means Judge Chin will ask the parties to renegotiate the deal following his public hearing on the subject on October 7th.

Speaking on behalf of the United States Government, the Justice Department objects to the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns of the United States regarding class action, copyright and antitrust law. The government proposes changes that may help address the concerns of United States. The Justice Department suggests the Settlement should:

1. Impose limitations on the most open-ended provisions for future licensing,
2. Eliminate potential conflicts among class members,
3. Provide additional protections for unknown rights holders,
4. Address the concerns of foreign authors and publishers,
5. Eliminate the joint-pricing mechanisms among publishers and authors, and
6. Provide some mechanism by which Google’s competitors can gain comparable access [to scanned content, depending on the settlement’s ultimate scope].

The full Justice Department announcement can be read here:
U.S. Justice Department Disapproves Google Book Search Settlement (PDF)

In my opinion ...

It's been recently reported that Google has been in 11th hour discussions with the Justice Department to offer concessions that would make the book deal acceptable. The existence of these discussions seems to be confirmed by this comment from Justice: "Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court ..."

Also of note, in the Congressional Hearing on September 9th, Google offered to forgo some profits and exclusivity in the deal by allowing others to access and publish books from its digital scans. This was widely reported in the media as a concession to publishers such as It is much more likely that this concession was part of Google's efforts to preemptively appease the Justice Department prior to their September 18th statement to the court.

Judge Chin's decision in October could be a setback for Google since a key element of the Settlement, which must be approved by the court, is to resolve alleged copyright infringement relating to Google's scanning and monetization of books that are still under copyright. Also, since the Settlement does not cover photographs in general, rejection of the current version could encourage a new class action law suit against Google relating to Google Image Search, which began monetizing image search with the addition of Adwords early in 2009.

Everyone agrees that enabling broad, digital access to books (over 10 million scanned thus far), including many that are out-of-print and otherwise inaccessible, would be a great service. What's really being decided is how the money will be divided and who will control this tremendously beneficial service that Google has initiated and paid to setup.

Another ramification ... rejection of the Settlement "as is" would indirectly emphasize the importance of evolving Orphan Works legislation. "Orphaned" books are a small subset of "Orphaned Works".

Randy Taylor
The Copyright Registry

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