Google Book Deal Still Needs Work, US Justice Department Says

The United States Department of Justice yesterday told the US District Court for the Southern District of New York that progress had been made on its concerns in the settlement allowing internet search giant Google to scan millions of books into a searchable database. But the government lawyers continue to have doubts on copyright, class certification and antitrust issues, they said.

Justice made its views known in a 31-page filing [pdf] filed with the court on 4 February. While it praised efforts so far, the department said, “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.”

In the Authors Guild Inc. et al. v. Google Inc. case, the district court is scheduled to hold a hearing on the proposed amended settlement agreement on 18 February.

In its new filing, Justice said the parties made progress as they eliminated “open-ended provisions that would have allowed Google to engage in certain unspecified future uses, appointed a fiduciary to protect rightsholders of unclaimed works, reduced the number of foreign works in the settlement class, and eliminates the most-favored nation provision that would have guaranteed Google optimal license terms into the future.”

These actions addressed concerns in the previous Justice Department filing from 18 September (IPW, Copyright, 18 September 2009).

But the agreement still would confer “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,” Justice said.

Justice reiterated its support for the objective of the Google Book Project. “Breathing life into millions of works that are now effectively dormant, allowing users to search the text of millions of books at no cost, creating a rights registry, and enhancing the accessibility of such works for the disabled and others are all worthy objectives,” it said in the filing.

But it said that as proposed, “Google would remain the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats. Google also would have the exclusive ability to exploit unclaimed works (including so-called ‘orphan works’) without risk of liability.” The settlement agreement’s pricing mechanisms, it added, “though in some respects much improved, also continue to raise antitrust concerns.”

Orphan works are those for which the copyright holder cannot be found.

A response from Google could not be found at press time.

The settlement agreement arose after The Authors Guild and five major publishers brought allegations of copyrights infringement against Google in 2005 for its project of digitally scanning books in several large libraries and make them searchable on the internet.