Andrew Albanese -- Publishers Weekly, 9/18/2009
In a highly anticipated brief, the Department of Justice on September 18 said the Google Book Search Settlement as currently structured should be rejected by the court overseeing its approval. “As presently drafted the proposed settlement does not meet the legal standards this court must apply,” the DoJ report concluded. "This court should reject the proposed settlement and encourage the parties to continue negotiations to comply with Rule 23 and the copyright and antitrust laws.”
In a silver lining, the DoJ recognized the potential value of a deal to facilitate book digitization, and officials urged the settlement parties to head back to the negotiating table. "A properly structured settlement agreement in this case offers the potential for important societal benefits," reads the DoJ statement. "The United States does not want the opportunity or momentum to be lost." In a brief statement, Google, the AAP and the Authors Guild, said they will address the concerns of the DoJ. “We are considering the points raised by the Department and look forward to addressing them as the court proceedings continue,” the statement read.
The DoJ's opposition makes it increasingly likely that the October 7 fairness hearing, or at least its outcome, will be delayed. While the DoJ was upbeat about the settlement's potential, suggesting that the parties address DoJ concerns and make the settlement viable, the issues outlined in its brief nevertheless strike deeply at the heart of the deal, and it remains to be seen how quickly these thorny issues, the subject of years of tense negotations, can be resolved, if they can be at all. Without modifications, the DoJ indicated there was "a significant potential" that the Department would conclude that the settlement "violates the Sherman Act."
Reaction: In a statement, The Open Book Alliance, a group opposing the deal, said it was pleased with the DoJ's conclusions. "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," read a statement. "Making books searchable, readable and downloadable promises to unlock huge amounts of our collective cultural knowledge for a broader audience than was ever possible. But, as we've noted, this settlement is the wrong way to go about making this promise a reality."
On his blog, the Laboratorium, New York Law School professor James Grimmelmann praised the DoJ's brief. "So many of the briefs and letters I’ve gone through in the last few weeks take a one-sided view of the settlement—wholly good or wholly evil—that it’s refreshing to read one that takes both good and bad seriously." Grimmelmann wrote. "The emphasis on continued discussion is healthy, and the indications that negotiations are actively underway are very encouraging. I’m feeling more optimistic that something good will result at the end of the day than I have been in a while."Perhaps the overarching question now, is how will the parties set about to fix the settlement? Will they continue to negotiate among themselves in private, or will they more actively bring in stakeholders, such libraries and European publishers? Already, European publishers have said they wish to be at the table going forward. I
n a terse statement, officials at the Federation of European Publishers, a trade group representing 26 national book publishers associations, demanded they be involved in the ongoing negotiations to fix the deal. "FEP has contacted the parties seeking an early seat at the table throughout ongoing negotiations," reads an FEP statement. "It is not acceptable that [European publishers] learn of progress through the press, and not consistent with the principles of natural justice that they be excluded from discussions."