Press Release

DOJ: Google’s Book Settlement Needs Rewrite


Fri, Sep 18, 2009 at 10:39 am

    The U.S. Department of Justice late Friday urged the court
    overseeing Google’s book search settlement with authors and publishers
    to reject the settlement in its current form, although it strongly
    hinted that the parties are flexible on certain provisions.

    "As presently drafted, the Proposed Settlement does not meet the legal
    standards this Court must apply," the DOJ said in a 32-page filing (click for PDF)
    with the U.S. District Court for the Southern District of New York.
    "This Court should reject the Proposed Settlement in its current form
    and encourage the parties to continue negotiations to modify it so as
    to comply with Rule 23 (a federal law governing class-action
    settlements) and the copyright and antitrust laws."

    After Google was sued in 2005 for digitizing out-of-print yet copyright protected books by several groups representing authors and publishers, the parties settled out of court in October 2008. That deal granted Google sweeping rights
    to scan and display out-of-print books. Ever since the settlement was
    announced, opposition has mounted to what one University of California
    at Berkeley professor recently called "the largest copyright licensing deal in U.S. history." Opponents claim that Google and the plaintiffs overstepped their bounds in assigning the company the sole right to make digital copies of out-of-print books that are still protected by copyright law.

    "The Proposed Settlement is one of the most far-reaching class action
    settlements of which the United States is aware; it should not be a
    surprise that the parties did not anticipate all of the difficult legal
    issues such an ambitious undertaking might raise," the DOJ wrote in its

    The DOJ has been looking into antitrust concerns
    stemming from the fact that Google and the nonprofit Books Rights
    Registry set up to handle payments to authors would have sole control
    over the pricing of institutional subscriptions to the digital library.
    But in its filing, it also raised questions about whether the
    settlement complies with Rule 23 of the Federal Rule of Civil Procedure
    as well as copyright law in general. "In the view of the United States,
    each category of objection is serious in isolation, and, taken
    together, raise cause for concern."

    Still, the DOJ noted that a digital library of books holds important benefits for society, a point that has been repeatedly raised by Google’s supporters,
    who argue that it would improve access to knowledge. It would appear
    that the DOJ, however, would prefer Congress settle the thorny issues
    of copyright laws that apply to orphan works–books whose rightholders
    cannot be located but which can be scanned by Google under the
    agreement–rather than making policy through legal settlements.

    "As a threshold matter, the central difficulty that the Proposed
    Settlement seeks to overcome – the inaccessibility of many works due to
    the lack of clarity about copyright ownership and copyright status – is
    a matter of public, not merely private, concern. A global disposition
    of the rights to millions of copyrighted works is typically the kind of
    policy change implemented through legislation, not through a private
    judicial settlement," the DOJ wrote.

    Reaction to the DOJ’s filing allowed parties from all sides of this issue to claim victory.

    "The Department of Justice’s filing recognizes the value the settlement
    can provide by unlocking access to millions of books in the U.S. We are
    considering the points raised by the Department and look forward to
    addressing them as the court proceedings continue," Google said Friday
    in a statement.

    The Internet Archive, perhaps Google’s most vocal opponent in this
    matter, was likewise pleased. "Despite Google’s vigorous efforts to
    convince them otherwise, the Department of Justice recognizes that
    there are significant problems with terms of the proposed settlement,
    which is consistent with the concerns voiced with the Court by hundreds
    and hundreds of other parties," the Open Book Alliance said in a

    "This is a major agreement, and it is entirely appropriate for DOJ to
    look at a deal of this magnitude," said Ed Black, president and CEO of
    the Computer & Communications Industry Association, which has
    supported the settlement. "They are doing their job scrutinizing the
    competition aspects of this settlement."

    And Consumer Watchdog, a strident opponent of the settlement, also found something to like in the DOJ’s filing:

    Consumer Watchdog supports digitization and digital
    libraries in a robust competitive market open to all organizations,
    both for-profit and non-profit, that offer fundamental privacy
    guarantees to users. But a single entity cannot be allowed to build a
    digital library based on a monopolistic advantage when its answer to
    serious questions from responsible critics boils down to: "Trust us.
    Our motto is ‘Don’t be evil.’"

    Google will learn whether it has earned that trust from Judge Denny Chin on October 7 in New York. That is, unless the settlement is modified in the coming weeks, in which case we could be looking at several more weeks of debate.

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