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DOJ: Court Should Reject Google Book Search Settlement

Still Scuffling Over the Deal

Google, the Authors Guild and the AAP maintain that the proposed settlement will be beneficial to authors, publishers and readers by making it easier to find, distribute and purchase books, especially those that are out of print.

However, critics have raised several objections, including what they perceive as excessive control by Google over prices and over so-called "orphan works." The latter are books that are under copyright but whose owners can't be found because the author has died or the publishing house disappeared.

The court where the case is being heard allowed hundreds of backers and critics of the proposed agreement to submit opinions for several months. That comment period closed earlier this month.

In its filing, the DOJ urged the court to tread carefully because the agreement is one of the most "far-reaching" class-action lawsuit settlement proposals the agency is aware of.

"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. If such a significant -- and potentially beneficial -- policy change is to be made through the mechanism of a class action settlement -- as opposed to legislation -- the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 -- Rule 23 -- are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply," the filing reads.

According to the DOJ, Rule 23 is designed to ensure that settlements of class action lawsuits resolve disputes for plaintiffs with aligned interests. It also seeks to protect the legal rights of absent class members with divergent interests from the class representatives. The proposed agreement falls short in this regard, according to the DOJ.

"The most sweeping forward-looking licensing provisions of the current Proposed Settlement -- which give open-ended control to the Registry and Google for the exploitation of the rights of absent class members unless those class members opt out of those provisions -- both exacerbate potential conflicts between the interests of the class representatives and those of absent class members -- especially rightsholders of out-of-print works and foreign rightsholders -- and are difficult to square with the requirements of Rule 23," the filing reads.

Antitrust Issues Remain

Since the DOJ hasn't completed its antitrust investigation, it can't state that the proposed agreement violates antitrust law, but it does have serious concerns in this area. For starters, it seems to the DOJ that the agreement gives book publishers power to restrict price competition. The DOJ is also worried the agreement could shut out other digital distributors from competing with Google.

Consumer Watchdog, a consumer protection organization that earlier this year urged the DOJ to get involved, filed a 30-page document opposing the agreement, saying it will "strip rights from millions of absent class members, worldwide, in violation of national and international copyright law, for the sole benefit of Google."

There should be a competitive book-search market, while the U.S. Congress must solve the orphan works problem, according to the group. "The parties simply cannot justify this 'solution' which does not adequately protect the Rightsholders and unfairly benefits a single party," reads the Consumer Watchdog statement.

Meanwhile, the Center for Democracy and Technology (CDT) came out in favor of the deal, saying the new book search services will be "extraordinarily valuable, and will make available to the public a vast amount of knowledge and information that is largely inaccessible today." The CDT tempered its endorsement by stating that the new services create "serious privacy concerns" and that the court should take "affirmative action" during the settlement process to make sure reader privacy is protected.

On Oct. 7, Judge Denny Chin will preside over a hearing where Google and the plaintiffs will have a chance to offer oral arguments in favor of approving the agreement. Those opposed will also have a chance to voice their opinions.

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