Authors, Publishers Ask Judge to Postpone Google Book Search Hearing

By Clint Boulton  |  Posted 2009-09-23

The authors and publishers groups involved in the Google Book Search settlement Sept. 22 asked a district court judge to postpone his fairness hearing on the deal so they can amend the agreement with Google and the Department of Justice.

The Authors Guild and Association of American Publishers in October 2008 announced a proposal to let Google scan millions of books online as a settlement to a copyright feud that dates to 2005. The deal has been wending its way through the court of public opinion for nearly a year, with supporters and detractors filing more than 400 statements and reports about it to New York District Court Judge Denny Chin.  

Chin is holding a fairness hearing on the deal Oct. 7. Yet after the Department of Justice Sept. 18 filed its objections to the deal and asked for revisions, the Author's Guild and Association of American Publishers asked Chin to give them more time to amend the deal. Google did not oppose the motion.

"Because the parties, after consultation with the DOJ, have determined that the Settlement Agreement that was approved preliminarily in November 2008 will be amended, plaintiffs respectfully submit that the Fairness Hearing should not be held, as scheduled, on October 7," the plaintiffs wrote in their filing.

"To continue on the current schedule would put the Court in a position of reviewing and having participants at the hearing speak to the original Settlement Agreement, which will not be the subject of a motion for final approval. It is certain that holding a hearing on October 7 will not afford all those interested with an opportunity to review and comment on the terms of the amended settlement agreement."

On those grounds, the plaintiffs asked the court to hold a status conference Nov. 6 because they need adequate time to negotiate amendments with Google and the DOJ. At that conference, the parties would share with the court their progress with Google and the DOJ. The plaintiffs said they will be prepared to schedule a fairness hearing after that meeting.

Before that time, Google and the authors and publishers groups would likely take steps to alleviate the DOJ's concerns that Google Book Search as it currently exists violates class action, copyright and antitrust laws. Of particular concern for the DOJ and others is Google's pledge to scan "orphan works" and let people read them for fees.

Orphan works are those that are under copyright, but with the rights holders unknown or not found. An overriding concern is that a rights holder will emerge after the book has been scanned and demand compensation. The current settlement protects Google from infringement penalties, but not others.

The latest request by authors and publishers was cheered by opponents of the deal, including the Open Book Alliance, a group that includes Google book-scanning rival Amazon, Microsoft and Yahoo.

"This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation and restricted competition," said the Open Book Alliance in a statement. "It's also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead."

Consumer advocacy group Consumer Watchdog further suggested that important issues affecting copyright law should not be negotiated behind closed doors.

"Essentially Google and the authors and publishers groups are back at square one and must re-negotiate the deal," said John M. Simpson, a consumer advocate with Consumer Watchdog. "But important copyright issues shouldn't be settled in closed-door negotiations among parties in a private suit. Questions like how to handle 'orphan works' are issues that must be resolved through Congressional action."

Read more about this issue on TechMeme here.

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