US Justice Department tells court to reject 'fixable' Google deal
21.09.09 | Philip Jones
Google, the Authors Guild and the Association of American Publishers have said that they intend to "address" concerns over the Google Settlement, after the US Justice Department (DOJ) urged the New York court presiding over the deal to reject it. The DOJ said the deal could not be passed in its current form, but was, according to one lawyer, "fixable". The DOJ indicated that ongoing talks with Google -- which a department official characterised as "very constructive" -- could lead to changes that would make the settlement acceptable.
The Justice Department said in a filing late on Friday that the court "should reject the proposed settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with ... copyright and antitrust laws." Legal experts said the judge reviewing the settlement was likely to give serious consideration to its arguments.
In a statement made in response to the filing, Google, the Authors Guild and the Association of American Publishers said: "We are considering the points raised by the Department and look forward to addressing them as the court proceedings continue." It is not yet clear whether this means the deal will still go forward to the judge, or whether it will have to be renegotiated. According to one report, a Justice Department official, speaking on the condition of anonymity, said it was "too early to tell" whether the types of changes the government recommended would require the parties to again notify all members of the plaintiff class about the terms of the settlement.
On the record, the DOJ stated that the public interest would best be served by direction from the court encouraging the continuation of discussions between the parties. It added: "Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost."
The Justice Department said the deal would give Google "de facto exclusivity" in distribution of orphan works, books which are in copyright but the rights holder cannot be located. The DOJ proposed that the parties consider a number of changes to the agreement that may help address the concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement’s ultimate scope, providing some mechanism by which Google’s competitors can gain comparable access.
According to James Grimmelmann, a professor at New York Law School, speaking to the Los Angeles Times: "The overall message from Justice is that there are a lot of good things in this settlement. It doesn’t work in its current form, but it’s fixable."
The DOJ's intervention was welcomed by those opposing the deal, including the Open Book Alliance, which includes Microsoft, Amazon, and Yahoo. It stated: "Despite Google’s vigorous efforts to convince them otherwise, the Department of Justice recognizes that there are significant problems with terms of the proposed settlement, which is consistent with the concerns voiced with the Court by hundreds and hundreds of other parties." And the US Consumer Watchdog stressed that even if Google, the Authors Guild and the Association of American Publishers agreed to change their deal to overcome Justice’s antitrust objections, the settlement still should not be implemented.
The deal was originally agreed one year ago, with the 'fairness' hearing already postponed by four months, until 7th October.
