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Google Books Settlement "fairness hearing" under way

As we await reports from the twice-delayed "fairness hearing" for the revised Google Book Search Settlement today before U.S. District Court Judge Denny Chin in Manhattan, over 500 amicus curiae briefs and statements to the court have been filed by interested parties supporting or opposing the class action agreement between Google, the Author's Guild, and the Association of American Publishers.
 
The proposed settlemen offers individual authors -- whose work had previously been digitized without permission by Google Books under the rationale of "fair use" -- portions of a $125 million class action settlement of copyright infringement claims in exchange for a sweeping and controversial agreement permitting Google to digitize all English language books, including those currently out-of-print or whose copyright holders can not be located. Under the terms of the agreement, Google would create an independently governed digital book rights registry to monitor downloads and produce new revenue streams for authors, publishers, and itself. 
 
Because of the class action nature of the agreement, Google, a publicly traded private corporation, would be granted what would amount to near-exclusive rights to digitize any English language book unless its author and/or publisher specifically opted out the agreement. Current and future competitors in the field of digital publishing -- i.e., Amazon, Apple, Barnes & Noble, Sony, or any of the nonprofit organizations that have been established to compile digital libraries -- would continue to be required to negotiate the rights to digitize and distribute books on a book-by-book or author-by-author basis. 
 
The antitrust implications of this settlement have drawn the criticism the Justice Department, which as the New York Times reported recently, has filed a 31-page brief opposing the revised version of the settlement Google unveiled Nov. 19. The Justice Department had also opposed the initial draft of the settlement drawn up by all three parties in October 2008. That draft, which ceded additional rights and leverage to Google and was intended to apply to all books in all languages regardless of variations in international copyright law, was withdrawn by Google for substantial revision in May.
 
Millions of words have been written on this subject over the past 16 months, particularly in recent weeks when the entrance of Apple into the digital books market and a publisher's rebellion, led by Macmillan against Amazon's monopoly on the pricing of e-books, may have forced Google to make concessions to the financial terms it offers authors and publishers if it hopes to salvage their support for the amended settlement agreement (or ASA, as it is now referred to in Google's statements). 
 
Perhaps the most comprehensive update on recent developments in the Google Book Settlement debate and an excellent summary of the arguments that have been advanced by those who support the deal as well as those who oppose it can be found in last week's issue of Library Journal, which has generally done a stellar job on the coverage of the debate from standpoint of the access and privacy concerns of individual readers.
 
Although a number of media sources had reported that a ruling by Judge Chin might be issued today, he opened this morning's session of the hearing by commenting "I'm going to say right off, I'm not going to rule today. ... I'm going to listen to opinions carefully and I'm going to ask a few questions."
 
Watch this space for further coverage of the fairness hearing, and Judge Chin's eventual ruling on the settlement.
 
---R.D. Pohl
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