Google's book settlement: Here comes the DOJ and likely deal tweaks

The Department of Justice became the latest party to file its concerns about Google's book settlement and it appears the search giant will have to either make tweaks or allow the feds to poke around.

The Department of Justice became the latest party to file its concerns about Google's book settlement and it appears the search giant will have to either make tweaks or allow the feds---and maybe even Congress---to poke around. Bet on the tweaks.

When we last checked in on the Google Book Settlement it was all about the sniping between the various parties. The headliners are Amazon vs. Google. Google was sued in 2005 by authors and publishers for infringing on copyrights as the search giant moved to digitize books. Google settled in October 2008 with authors and publishers for $125 million and agreed to set up a registry to ensure copyright owners would be compensated. Now many parties are freaked out that Google could garner such control.

You can add the DOJ to the list. In a filing, the DOJ said:

The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works. The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit from the accessibility elements of the Proposed Settlement, and, if the Proposed Settlement were approved, full text access to tens of millions of books would be provided through institutional subscriptions. Finally, the creation of an independent, transparently-operated Book Rights Registry (the “Registry”) that would serve to clarify the copyright status and copyright ownership of out-of-print works would be a welcome development.

Sounds constructive until the big "but" comes along:

Nonetheless, the breadth of the Proposed Settlement – especially the forward-looking business arrangements it seeks to create – raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply. This Memorandum sets forth the concerns of the United States with respect to the current version of the Proposed Settlement; these concerns may be obviated by the parties’ subsequent changes to the agreement.

The key words in that passage are the following:

  • Legislation: Typically Congress worries about these things;
  • Rule 23: That's the rule that determines whether a class action suit is representative of all parties;
  • Antitrust: The DOJ will look at the settlement closely;
  • Subsequent changes: If Google tweaks its deal maybe this problem goes away.

Given these moving parts, a few tweaks to shut up the peanut gallery may be the best route for Google, publishers and all of those critics. Will Google really play chicken with the DOJ or tweak its deal? Bet on the tweaks.