[A2k] CNet: DOJ: Google's book settlement needs rewrite

[Malini Aisola]

http://news.cnet.com/8301-30684_3-10357097-265.html?part=rss&subj=news&tag=2547-1_3-0-20


DOJ: Google's book settlement needs rewrite
by Tom Krazit

September 18, 2009

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
(http://thepublicindex.org/docs/letters/usa.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."

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
filing.

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 statement.

"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.





--
Malini Aisola
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500, Washington DC 20009
malini.aisola@keionline.org|Tel: +1.202.332.2670|Fax: +1.202.332.2673