DOJ Deems Amended Google Book Search Deal Anticompetitive

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 over the 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 search 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.

The DOJ and Google’s search rivals opposed the deal, 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 readers’ privacy.

Google, authors and publishers in November 2009 revised 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 works.”“

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.