The Department of Justice Feb. 4 urged a New York District Court not to bless Google's amended Google Book Search deal with authors and publishers, citing copyright and antitrust issues that render the deal anticompetitive. The DOJ said the deal would let Google be the only competitor in the digital marketplace with the rights to distribute many works in multiple formats. The DOJ further agreed to work with Google, authors and publishers on a viable, fair solution. District Court Judge Denny Chin will hold a hearing on the amended settlement agreement Feb. 18.
The Department of Justice said copyright and antitrust concerns
continue to make Google's amended settlement agreement for its Google
Book Search project anticompetitive, suggesting the court presiding
case shouldn't bless the deal.
Acknowledging that Google and authors and publishers have
made considerable progress in their agreement to digitize books and offer them
to readers through Google's search
engine, the DOJ told the U.S. District Court for the Southern District of New
York Feb. 4:
"Although the United States believes the parties
have approached this effort in good faith and the amended settlement agreement
is more circumscribed in its sweep than the original proposed settlement, the
amended settlement agreement suffers from the same core problem as the original
agreement: it is an attempt to use the class action mechanism to implement
forward-looking business arrangements that go far beyond the dispute before the
court in this litigation."
Google and the Author's Guild and the Association of
American Publishers in October 2008 struck
their Google Book Search deal, a
plan in which Google would scan millions of orphan books, or those
works for whom
authors can't be found or are unknown. Google would then let users
for them and pay to use the works, with authors and publishers taking
63 percent of the sales and Google taking the remaining 37 percent.
and Google's search rivals opposed
arguing that it would give Google too much control over orphan works in an
increasingly competitive space. Privacy advocates complained
that Google wasn't taking the necessary precautions to protect
Google, authors and publishers in November 2009
the settlement, which has been picked over and commented on by opponents
and proponents while the District Court reviews the deal.
In a 31-page filing to presiding District Court Judge
Denny Chin, the DOJ acknowledged the parties in the deal made "substantial
progress" over such concerns as: enabling rivals to access orphan works;
imposing limitations on provisions for future licensing; eliminating potential
conflicts among class members; providing more protections for orphan works; and addressing
the concerns of foreign authors and publishers.
However, the DOJ claimed the deal still affords Google "anticompetitive
advantages." Specifically, the DOJ said the deal would let Google be the
only competitor in the digital marketplace with the rights to distribute many
works in multiple formats. The DOJ further agreed to work with Google, authors
and publishers on a viable, fair solution.
Google's response to the DOJ's filing ignored the
negative conclusion, playing up the positive. A Google spokesperson told eWEEK:
"The Department of Justice's filing recognizes the progress made with the
revised settlement, and it once again reinforces the value the agreement can
provide in unlocking access to millions of books in the U.S.
We look forward to Judge Chin's review of the statement
of interest from the Department and the comments from the many supporters who
have filed submissions with the court in the last months. If approved by the
court, the settlement will significantly expand online access to works through
Google Books, while giving authors and publishers new ways to distribute their
Despite Google's positive spin, experts have said they
would be surprised if Chin disagreed with the DOJ and approved the amended settlement
agreement, which comes almost five years after authors and publishers filed a copyright
infringement suit versus Google.
Chin, who has received reams of documentation
from opponents and proponents of the deal in the last few weeks, will hold
a hearing on the amended settlement agreement Feb. 18.