Parties Submit New Proposal to Settle Google Book Search Litigation

November 15, 2009

Though they kept the world waiting until the last legal minute, the parties to the proposed Google Book Search settlement managed to meet their new November 13 deadline to file a revamped version with the federal judge overseeing the case. Google, the Authors Guild, and the Association of American Publishers submitted Settlement 2.0 close to midnight Eastern time on Friday.

The parties had set out to rework their proposed settlement agreement after the Justice Department recommended in September that the judge rule against the first version, raising serious misgivings about whether the deal was anticompetitive.

The original settlement arose from a lawsuit brought by the authors' and publishers' groups against Google over the Book Search program, which has been digitizing millions of books. Though many have praised the program for creating a widely accessible digital library, critics have attacked it on several fronts, saying it is monopolistic, places readers' privacy at risk, and might violate international law.

In their lawsuit, the plaintiffs contended that Google was making unfair use of copyrighted material. To settle the case, they and Google agreed to establish a Book Rights Registry as a clearinghouse to determine who owns the rights to the works and to make sure rights holders would be compensated for letting their books be accessible through Book Search.

"We've made a number of changes to the agreement to address concerns raised, while preserving the core principles of the agreement," the parties to the latest settlement proposal said in a joint statement. "We look forward to seeking final settlement approval so that readers, authors, and publishers can enjoy its benefits."

Narrower Reach

So what's new? The most-recent agreement, if approved by the judge, would limit the international reach of the settlement to books "that were either registered with the U.S. Copyright Office or published in the U.K., Australia, or Canada," according to a summary. That change takes into account strong objections raised by France and Germany, among others, over concerns about how the settlement would affect their authors' rights.

The settlement deals with some of the loudly expressed worries over unclaimed works, meaning books to which no one has claimed rights yet. (This includes so-called orphan works that may or may not still be under copyright.) The Book Rights Registry, would now include an independent rights watchdog of sorts: "a court-appointed fiduciary who will represent rights holders of unclaimed books, act to protect their interests, and license their works to third parties, to the extent permitted by law," the summary says.

The amended agreement includes a provision likely to please academic authors, some of whom have argued that their interests are different from those of more commercial authors represented by the Authors Guild in the lawsuit. Google and the other parties have now made it clear "that rights holders can make their books available for free or allow reuse under Creative Commons or other licenses." Librarians will note that the Book Rights Registry is now allowed to permit public libraries to grant free access to Google Book Search at more than one terminal.

Now for the big question: Does the revised settlement open the field for Google's would-be competitors in the book-digitizing realm and allay the concerns about anticompetitiveness flagged by the Justice Department? In one significant change, the settlement no longer contains the so-called Most Favored Nation clause guaranteeing that nobody would receive better terms from the Book Rights Registry than Google. Under the new proposed settlement, the registry would be "free to license to other parties without ever extending the same terms to Google," the summary says.

Lingering Dissatisfaction

That change does not appear to have mollified Google's competitors, particularly the members of the Open Book Alliance. The alliance comprises, the Internet Archive, Microsoft, and Yahoo—all rivals to Google in one way or another—and several writers' organizations.

In a reaction posted on its blog, the alliance accused Google, the Authors Guild, and the publishers' group of "performing a sleight of hand" in their revisions. "Fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners," it said. The alliance argued that "by performing surgical nip and tuck," the parties to the deal "are attempting to distract people from their continued efforts to establish a monopoly over digital-content access and distribution."

In a post on Google's Public Policy Blog, Dan Clancy, Google Books' engineering director, wrote that the changes in the settlement "address many of the concerns we've heard (particularly in limiting its international scope), while at the same time preserving the core benefits of the original agreement: opening access to millions of books while providing rights holders with ways to sell and control their work online."

Mr. Clancy also stated, "We're disappointed that we won't be able to provide access to as many books from as many countries through the settlement as a result of our modifications, but we look forward to continuing to work with rights holders from around the world to fulfill our longstanding mission of increasing access to all the world's books."

The court will now set a timetable for observers and interested parties to submit reactions and objections, and it will schedule a final fairness hearing, which is likely to take place early in 2010.