The Great Book Bank Robbery – US Justice Says Deal not Good Enough

The US Justice Department (DoJ) has issued a weighty paper on its findings into the Google Book Settlement which has sparked off many commentaries and predictions as to the potential outcome. To read the full paper ‘STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA:REGARDING PROPOSED CLASS SETTLEMENT’

They clearly see the potential benefit in moving forward but raise significant issues that they believe would be best addressed via further dialogue and negotiations and go some way to laying the foundations to address the current situation. The DoJ clearly wants a revised settlement, a re-notice and renegotiation which some mat say says clearly that what was negotiated is what many have said all along – unworkable.

They said in their filing that the 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, which sets parameters for approving settlements of class action lawsuits and the copyright and antitrust laws."

“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.”

“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.”

“Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost.”

The DoJ, clearly believe that the agreement as it stands today is unacceptable but equally seek an agreement that is fair to all, protects competition, makes out-of-print works more available and creates accessible versions for the disabled. They suggest imposing limitations on the most open-ended provisions for future licensing. They sit somewhat on the fence as to whether the settlement is anti trust, probably as they want all parties to try harder but ask for the provision of some mechanism by which Google’s competitors can gain comparable access. They rightly raise concern as to whether the named plaintiffs took due care of the rights of orphan and foreign owners. The solution here is somewhat a cop out and doesn’t come down on the clear need for opt in not opt out. The suggestion that foreign copyright owners have representation in the negotiations is interesting as it could be what some parties wish for and may clearly start to make the deal even more global and raise even more hostility abroad.

The DOJ's opinion is likely to be seen a major blow against Google and one for seeking agreed change that is inclusive and respectful of all interests not exclusive and some would suggest negotiated by the few on a ‘we know best basis’. Let’s hope that the judge agrees and common sense prevails.