DOJ on Google Book Settlement: Get Me Another Rewrite
The Department of Justice still isn’t sold on the Google Books settlement agreement. In a brief filed late Thursday, the DOJ said that significant legal problems remain despite the considerable changes Google, publishers and authors have made to it.
“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,” the DOJ said in a filing with the U.S. District Court for the Southern District of New York.
“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 report continues. “Under the [revised proposal], 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.”
And then there was this:
Google’s exclusive access to millions and millions of books may well benefit Google’s existing online search business. Google already holds a relatively dominant market share in that market. That dominance may be further entrenched by its exclusive access to content through the ASA. Content that can be discovered by only one search engine offers that search engine at least some protection from competition. This outcome has not been achieved by a technological advance in search or by operation of normal market forces; rather, it is the direct product of scanning millions of books without the copyright holders’ consent.
In other words, the amended deal continues to give Google (GOOG) significant anticompetitive advantages and rewards the company for scanning books in violation of copyright protections. And while the Justice Department did not go so far as to explicitly urge rejection of the deal, it recommended that parties to the settlement make further changes before the Feb. 18 fairness hearing at which it is to be reviewed.
Another setback for Google, or as Gary Reback–a Silicon Valley antitrust lawyer who represents Microsoft (MSFT) and the Open Book Alliance, a coalition opposed to the settlement–said, the filing is a “profound embarrassment–bordering on an outright humiliation” for the search company.