Justice Dept. devastates Google Books settlement, as the parties rush to the back rooms

Justice Dept. devastates Google Books settlement, as the parties rush to the back rooms

Summary: The Justice Department has issued a scathing critique of the Google Books settlement, and Google and the publishers and authors are desperately trying to save this deal.

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The big news from the Justice Department's critique of the Google Books deal is that are "frantic negotiations going on in back rooms right now,” New York Law School prof James Grimmelan told the New York Times.

This we know because DOJ's statement to the court tells us:

The United States has been informed by the parties that they are continuing to consider possible modifications of the Proposed Settlement to address the many concerns raised by various commenters and by the United States in its discussions with the parties.

The letter is a game-changer, the one document that is sending Google and its partners into feverish negotiation, after withstanding a torrent of objections. DOJ's letter to the court then goes on to explain why, unmodified, this deal is a loser:

  1. The current deal is not "fair, reasonable and adequate" to the class members. It gives Google a forward-looking release from liability for infringing class members' copyrights, while it allows the class representatives (the publishers and the Authors Guild) to opt out of any Google products they don't like.
    The provisions of the Proposed Settlement that authorize the Registry to license Google to exploit the copyrighted works of absent class members for unspecified future uses (potentially derivative works or other uses) – essentially authoriz(e), upon agreement of the Registry, open-ended exploitation of the works of all those who do not opt out from such exploitations.
  2. The deal violates antitrust law.
    First, through collective action, the Proposed Settlement appears to give book publishers the power to restrict price competition. Second, as a result of the Proposed Settlement, other digital distributors may be effectively precluded from competing with Google in the sale of digital library products and other derivative products to come.
  3. Most importantly, the deal shuts off competition in digital distribution of books virtually forever. It gives Google "de facto exclusive rights" of orphan works.
    The Proposed Settlement appoints the Registry to negotiate with Google on behalf of the entire class regarding new commercial uses of digital books, and releases Google from any copyright liability arising from those new uses. The Proposed Settlement does not forbid the Registry from licensing these works to others. But the Registry can only act “to the extent permitted by law.” And the parties ... believe the Registry would lack the power and ability to license copyrighted books without the consent of the copyright owner – which consent cannot be obtained from the owners of orphan works. If the parties are correct, the Registry will lack the ability to provide competitors with licenses that will allow them to offer to the public anything like the full set of books Google can offer if the Settlement Proposal is approved.

Having said all this, the massive scanning and digital distribution of out of print and orphan works is a very good thing. It just can't be Google's good thing. And DOJ is literally telling Google how to fix this problem:

This risk of market foreclosure would be substantially ameliorated if the Proposed Settlement could be amended to provide some mechanism by which Google’s competitors’ could gain comparable access to orphan works (whatever such access turns out to be assuming the parties negotiate modifications to the settlement).

The Times quote the Authors Guild's paul Aiken: “Clearly, the Justice Department is saying ‘find something that would make this near universal library happen.’ ”

Agreed, it would suck if we just had to go back to the current stupid system of orphan works being locked away and out-of-copyright books being stuck in libraries. The great hope is that what has happened so far can be extended to competitive, universal access in open formats. And now it looks like that might happen, thanks to the government. As Grimmelman notes:

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.

Topics: Enterprise Software, Banking, Google, Government, Government US, Legal, Security

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Talkback

17 comments
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  • As long as it doesn't "belong" to Google

    How about, let Google spend the time and money and then turn everything over to the Library of Congress or possibly the Smithsonian, etc. so that anyone can access it freely.

    Bet Google would not care for that idea much. After all, they are in it for the money.
    No_Ax_to_Grind
    • Hmmmm.....perhaps when the patent..copyright...expires.???

      And if Microsoft follows the same stuff...guess they are equal,...right?
      No More Microsoft Software Ever!
  • 'Thanks to the government' -- why?

    The government sets up copyright law so that registration of copyrighted works is not required and grants the copyright for life plus 50... an approach that is guaranteed to create a multitude of orphaned works. Next Mr. Korman and Mr. Grimmelman think we are supposed to be thanking the government for being a "stern parent" when private enterprise makes a first attempt at cleaning up the mess that the government created in the first place.
    turbinepilot
    • Then give it to everyone, not just Google.

      See how simple that is?
      No_Ax_to_Grind
      • Everyone, everything, every Corp has what Google has.

        You know that! Microsoft used it!
        No More Microsoft Software Ever!
  • this is the big corrupt government at work

    Thanks to the bribes paid by M$ and other greedy pigs, the socialist goons from DOJ are ruining a great deal for the American people.
    We must take the country back from the lobbyists and liberals and restore a business friendly environment so the economy could flourish.
    Linux Geek
    • Hey moron, I don't want it and I am not the government.

      Unlike you, I write my elected reps to let them know how I feel about it. Grow up!
      No_Ax_to_Grind
      • Hey Moron, I want it and I am not the government.

        Unlike you, I write my elected reps to let them know how I feel about it. Grow up! Everyone is NOT like YOU (Nor are they anti-Northern/Southern folks!).
        No More Microsoft Software Ever!
  • It's not orphaned works I'm worried about.

    It's the freedom from redress for 'accidentally'
    distributing a copyrighted work that infuriates me.

    If Google wants to publish my works, they can bloody well
    ask me. It is NOT my job to check their scanned books
    twice a day and send out cease and desist notices.

    My job is writing more books, not tracking down Google-
    enabled copyright violations...
    Ad Astra
    • do you work for google's foes?

      It is yout duty to enforce the copyright.
      If you don't use it...you lose it, this is still true because we live in America, not some socialist country where the government takes care of your work.
      Unless you are some paid $hill, you must be some lazy writter waiting for the big government to set up an agency so you can collect money and get handouts.
      Probably there is no need for your work in the land of the free and you should move to Cuba or North Korea.
      Linux Geek
      • That is NOT the law

        Copyright lasts its full term. Period. There is
        no use it or lose it clause. There WAS, like 40
        years ago. That was changed in the 70s. Since
        then, copyright simply exists. No renewal
        required. This screwed up system is the work of
        Congress.

        This is the socialist system in which you live,
        Linux Geek: You create something, you have a
        copyright. You want to enforce it, you need to
        sue. If you sue without registering it, you
        will lose. But that doesn't stop you from
        suing. The violator will still have to hire
        their own lawyers to defend. If you do
        register, you will win in court. But registered
        or not, you own the copyright and it's a
        violation.

        What is ACTUALLY a socialist system is one in
        which one company operates without competition,
        violates the law, comes up with a collusive
        agreement that strips property owners of their
        rights to enforce the law for all past AND
        FUTURE violations, and convinces the numbed out
        population that this is a GOOD THING.
        rkoman9
        • NOT the law?

          Please return to school and study a little more closely this time.
          twaynesdomain-22354355019875063839220739305988
          • Well?

            You have some specific authority you want to point to to contradict my understanding? WHich is: There is no renewal requirement. Copyright does not die in less than the full term for failure to take some action. Enforcing copyright does require registration. What do you have to the contrary?
            rkoman9
      • work for google's foes?

        Can we assume you'll be there and ready to show them around?
        twaynesdomain-22354355019875063839220739305988
    • Exactlly!

      That is why Google tried to sneak the "forward indemnification" into it.
      No_Ax_to_Grind
    • It's not orphaned works...

      ExACTly! I don't know for sure about orphaned works, but ... what about the writings some put out that are specifically NOT to be encumbered with copyrighting? The "free" contributions, the books, white papers, informative articles/books/pages meant to never be copyrighted but freely available to all for all time? How are those cases handled?

      So far our gvt critters almost sound like they know what they're talking about, but ... I cannot convince myself that they won't allow the grabbinb and copyrighting of such works. After all, wasn't that the original concept of the web's internet?

      I realize some of the things I mentioned ARE copyrighted quite often by the authors, but then after a period of time they become "orphaned" or the authors are no longer available: That's NOT a reason to let a Google take it on and sell it! I would sue viciously and with great prejudice should such a thing ever happen to me. I've just had a theoretical conversation with some lawyers that would love to take on such a scenario.
      Do not trust such a "deal" to ever be understandable or even to have all the fine print anyplace it can be found!
      twaynesdomain-22354355019875063839220739305988
    • I DO THINK THE POINT IS...original works are original.

      If your works are side-by-side the same as other works you COPIED; Otherwise, you are safe. Let your WORDS say it out LOUD!
      No More Microsoft Software Ever!