The Justice Department Says the Amended Google Book Settlement Isn't Good Enough
*Read or listen to this interview with Professor James Grimmelmann at the New York Law School if you don't know what the hell is going on here*

The DOJ issued a filing today saying that while they appreciated the amendments that Google, the Author's Guild, and the AAP made to the Google Book Settlement, the amendments haven't gone nearly far enough, meaning that it will be almost impossible for Judge Chin to approve this Settlement as it is.

Tactically, the DOJ waited until now to say this (two weeks before the proposed fairness hearing on February 18th) in order to squeeze the parties into making big concessions. Maybe this will happen. Maybe Google has a secret, emergency Settlement hidden away somewhere. However, it is most likely impossible at this point for the parties in question to draft a new agreement in time that will make the DOJ happy.

Google had plenty of opportunities to make changes before this, mind you: they just decided ignore the DOJ's concerns back in October, hoping these issues were mere bluster.

Evidently, the DOJ wasn't bluffing about their antitrust issues with the Settlement, however. From their press release:

"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."

"...the amended settlement agreement still confers significant and possibly anticompetitive advantages on Google as a single entity, thereby enabling the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats."

"The department continues to believe that a properly structured settlement agreement in this case offers the potential for important societal benefits. The department stated that it is committed to continuing to work with the parties and other stakeholders to help develop solutions through which copyright holders could allow for digital use of their works by Google and others, whether through legislative or market-based activities."

This has all basically been the DOJ's way of testing to see whether or not Google was really in it for the books, or were only in it for the greedy monopoly. The DOJ gave them one last chance to change the anti-competitive elements in this Settlement -- preserving the spirit and still opening up orphan books for publication -- and Google refused, proving that the only way this Settlement is interesting to them is if they can leverage total control over special rights no one else will have.

So don't blame the DOJ, Ursula Le Guin, Microsoft, Slashdot, or Brewster Kahle for the failure of the Google Book Settlement and the continuing curtain over orphan books. Blame Google for their hubris and their attempt to capitalize on a serious problem that needs to be fixed: broken copyright legislation.

Don't freak out too much. Google can still do whatever they want with books whose rights they can legally acquire, which are plenty, man, plenty.

Posted by miracle on Thu, 04 Feb 2010 23:10:55 -0500 -- permanent link

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