Parties pull Google Books settlement, promise a version that meets Justice approval

A massive development in Google Books: the parties have asked the court to vacate the upcoming hearing date so they can redraft their settlement to satisfy antitrust concerns.
Written by Richard Koman, Contributor

The plaintiffs in the Google Books case just filed a request for adjournment of next month's Fairness Hearing(!) In a short brief the parties explained that they're committed to working with the Justice Department to come up with a new version of the settlement agreement that the government will approve of.

You'll recall that the Justice Department submitted a Statement of Interest that found the current deal fails both antitrust and class action scrutiny. That statement also revealed that the parties had been discussing the situation with Justice and are committed to addressing those concerns. (Read: scrambling like mad to salvage this thing.)

Of key importance is that the U.S. Statement of Interest confirmed the DOJ’s reciprocal desire to work with the parties to address concerns raised by the United States. The U.S. Statement of Interest states that the United States government supports the aims of the Settlement and “is committed to working with the parties constructively with respect to alterations the parties may propose.”

In short, both the United States government and the parties are agreed: “[A] properly structured settlement agreement in this case offers the potential for important societal benefits.” Therefore, as the United States government put it, no one wants “the opportunity or momentum to be lost.”

It is because the parties wish to work with the DOJ to the fullest extent possible that they have engaged, and plan to continue to engage, in negotiations in an effort to address and resolve the concerns expressed in the U.S. Statement of Interest. The parties are committed to rapidly advancing the discussions with the DOJ. Nevertheless, it is clear that the complex issues raised in the U.S. Statement of Interest preclude submission of an amended settlement agreement by October 7.

Now the question is, how extensive will the rewrite be? How strongly will the new settlement support universal access to scanned works, open formats, equal treatment of authors? Will Google still have special status with regard to orphan works? Will the new settlement address other concerns like privacy at all?

Or does this mean a total failure of the settlement agreement? Is it, as the Open Book Alliance has it, "dead"?

This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition. It’s also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead.

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