The amended Google Book Search agreement to scan millions of books online and sell them to readers remains in limbo in the wake of the Department of Justice's statement that the deal stands to make Google a monopoly in the digital book market.
The DOJ commended Google for meeting several of its earlier concerns over the deal, in which Google, authors and publishers have agreed to offer works to users and share monies gained from the sales. Ultimately, the regulatory group found that the amended settlement agreement still confers significant and possibly anti-competitive advantages to Google.
Essentially, the DOJ and proponents believe the deal would make the world's leading search engine the lone competitor in the digital marketplace with the power to distribute orphan works, those books for whom authors are unknown or can't be found.
Amazon, Apple or whatever power aims to offer digital books for electronic readers and e-book Web services would have to deal with Google to procure millions of books. Google has agreed to license works from its catalog to all parties who want them.
The DOJ did more than put its big foot on the throat of Google Book Search. In its 31-page filing, the DOJ sent a strong statement to U.S. District Court Judge Denny Chin, who is presiding over the case.
Not only did the DOJ conclude that the deal would make Google a monopoly power in the nascent e-book space, but it questioned whether the lower court even has the authority to preside over the case. The DOJ urged the court to encourage Google, the Author's Guild and Association of American Publishers to continue settlement discussions.
The Open Book Alliance, which includes Amazon, Yahoo, Microsoft and several other opponents of Google Book Search, lauded this finding in a statement after the DOJ's finding Feb. 4:
""The Department of Justice has made it crystal clear that the proposal before the court is overreaching and cannot be approved: '... the United States has reluctantly concluded that use of the class action mechanism in the manner proposed by the ASA is a bridge too far.'""
Will Chin spurn the DOJ's advisement and rule in favor of Google during his Feb. 18 hearing? Unlikely. It is rare for courts of more localized authority to go against the federal grain.
Google Book Search opponents smell blood in the water. Consumer Watchdog advocate John Simpson said in a statement: "The DOJ filing and the outpouring of other briefs from around the world opposing the amended settlement, such as the one filed by Consumer Watchdog, make it almost certain Judge Denny Chin will reject the deal."
eWEEK asked Google Feb. 5 what it intends to do if Chin sides with the DOJ and opponents of the deal, but received no response as of this writing. The questions were fair, but Google seems to be sticking to its stance that it looks forward to Chin's review of the DOJ's statement.
Will the search engine go back the bargaining table to hash out a new deal? This is well-trodden ground. Google, authors and publishers struck their initial deal in October 2008 and spent more than a month revising it at Chin's behest before issuing the amendment at the 11th hour Nov. 13, 2009.
It would be a major blow if Google scrapped its plans to scan books and move on because the search engine and its partners believe strongly in it.
David Drummond, Google's senior vice president for corporate development and chief legal officer, wrote in a Feb. 5 editorial in the U.K.'s Guardian that most of the world's books are out of print but in copyright, making them hard to access for the majority of people. Google Book Search aims to solve that by scanning the works on its servers and offering them through libraries and its own storefront.
The Author's Guild noted Feb. 5:
""In our view, it's best for everyone that out-of-print library books be made available through reasonable, market-based means to readers, students and scholars. Without a settlement, that won't happen.""
More likely than not, Google, authors and publishers will find themselves back at the bargaining table later this month, perhaps with help from chief dissenter DOJ.