Google Book Settlement Being Revised After Justice Department Says it Violates Federal Law

Posted on September 21, 2009

On Friday the Justice Department weighed in on the Google Book Settlement saying that if it wasn't revised, the Justice Department would stop the deal because it violates a number of federal antitrust laws. As of today The New York Times reports that the settlement is being revised to comply with the Justice Department's complaints.

"The news out of this is that there are frantic negotiations going on in back rooms right now," said James Grimmelmann, an associate professor at the Institute for Information Law and Policy at New York Law School, which raised antitrust and other objections to the settlement. "The parties are scared enough to be talking seriously about changes, with each other and the government. The government is being the stern parent making them do it."
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The Justice Department's filing on Friday, echoing other critics, said that the settlement could give Google a virtually exclusive license to millions of out-of-print "orphan books," whose rights holders were unknown or cannot be found, making it impossible for anyone else to build a comparable digital library; the interests of some class members, including authors of orphan works and foreign authors, might not have been adequately represented; and the efforts to notify class members about the settlement might have been inadequate.
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Laying out a path forward, the department said some of its antitrust concerns could be mitigated by "some mechanism by which Google's competitors' could gain comparable access to orphan works." And it said that concerns about the fair representation of some authors could be addressed if some rights for Google to profit from out-of-print books were granted only if their authors agreed, rather than by default.

One of the biggest problems that many authors have with this settlement is the opt-out provision. Authors' works are covered under the deal unless they opt out. The government says authors should have to opt in if they want to participate in the deal.

Because this is a class action suit, if major changes to the settlement are made then everyone will have to be notified and the hearing date will be moved. So it's unclear at this point what exactly is going to happen at the October 7 hearing. Most likely many of the other objections will be heard, then the hearing will be postponed.