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Google Book Settlement to be renegotiated

As Poets & Writers Magazine and the Wall Street Journal reported, all three parties in the proposed class-action settlement negotiated between the Authors Guild, the Association of American Publishers and Google Books filed motions on Thursday to postpone the scheduled hearing Oct. 7 in New York City before Justice Denny Chin, U.S. District Court Judge for the Southern District of New York, to review the settlement. Judge Chin indicated he will accept the motions.
The plaintiffs will return to the negotiation table along with advisors from the antitrust division of the U.S. Department of Justice to amend the existing framework of the settlement to comport with current trade and intellectual property law and address many of the concerns about the sweeping settlement raised by its opponents.  The parties proposed an interim "status conference" before the court on Nov. 7th to report on their progress.   
The controversial, 334 page agreement involving a $125 million payment by Google to address past copyright infringement issues in exchange for sweeping, near-exclusive future rights to distribute digital versions of all books--in and out of print--on the World Wide Web had met with considerable opposition from individual authors, librarians, academic scholars, copyright law specialists, and privacy advocates as well as from five state attorney generals and intellectual property rights lawyers representing the European Union.
Last Friday, the Department of Justice, which had remained on the sidelines while the deal was negotiated under the previous administration, weighed in with a brief to the court that indicated it would oppose the settlement as currently written.  While lauding the potential of the agreement to "breath life into millions of works that are now effectively off limits to the public" and revolutionize access to information within various fields of research, the DOJ noted:
...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 law) 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.
Google's filing on Thursday read, in part, as follows:
To continue on the current schedule would put the Court in a position of reviewing and having participants at the hearing speak to the original Settlement Agreement, which will not be the subject of a motion for final approval....The interests of class members and of judicial economy will not be well served by holding a hearing on the present Settlement Agreement. In fact, depending on the contours of the amended settlement agreement, some objectors may no longer object and would choose not to travel to New York at all for the hearing.
The Authors Guild, which has taken the lead in previous negotiations with Google, issued a statement that said, "We'll continue to work on amending the settlement to address the Justice Department's concerns....The parties are committed to rapidly advancing the discussions with the DOJ. Nevertheless, it is clear that the complex issues raised preclude submission of an amended settlement agreement by October 7."
In letter to all three plaintiffs, Judge Chin wrote "The current settlement agreement raises significant issues as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations and prominent authors and law professors. Clearly, fair concerns have been raised. On the other hand, the proposed settlement would offer many benefits to society as recognized by supporters of the settlement as well as the DOJ...Under all the circumstances, it makes no sense to conduct a hearing on the fairness and reasonableness of the current settlement agreement, as it does not appear that the current settlement will be the operative one....."
None of the statements issued Thursday addressed whether individual authors who had opted out of the proposed class action settlement in writing by the September 4th deadline imposed by the court would also have to opt out of the eventual amended settlement.
--R.D. Pohl


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