Authorities at the Department of Justice have told a federal court that they have significant concerns about Google’s landmark agreement with authors and publishers to create a sprawling digital library, warning that even after a substantial revision, the settlement represents a dramatic departure from copyright precedent.
The Justice Department filed its comments with the U.S. District Court for New York’s Southern District on Thursday, two weeks before the court is scheduled to hold a final fairness hearing to determine whether to approve or reject the agreement.
The court had planned to hold the hearing in October, but Judge Denny Chin called it off after the DoJ raised significant objections and Google and the authors and publishers volunteered to revised the settlement agreement.
In the latest filing with the court, DoJ credited Google (NASDAQ: GOOG) and the groups for making significant strides toward a workable agreement with the revision, but said that the same root concerns persisted.
“The amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation,” the DoJ attorneys said.
The settlement agreement would resolve a lawsuit the Authors Guild and Association of American Publishers brought against Google for its Book Search project, under which digital versions of copyrighted works would be made available to the public. The parties settled in October 2008, with Google agreeing to establish a rights registry for authors to come forward and claim their copyrighted works that would be included in the digital library.
The agreement has sparked heated opposition from a variety of groups, including a U.S.-based opposition coalition formed to expressly oppose clearance of the settlement agreement.
The Open Book Alliance, which counts Google rivals Microsoft (NASDAQ: MSFT), Yahoo (NASDAQ: YHOO) and Amazon (NASDAQ: AMZN) as members, praised the DoJ’s filing, saying that the objections “will help to preserve competition, promote innovation and protect the public interest.”
Critics have zeroed in on the unique exemption to copyright law that Google would enjoy under the settlement, which would give it the right to digitize orphan works — books that are still under copyright but whose authors cannot be located.
In the revised settlement, Google agreed to appoint a financial officer to protect the rights of authors of orphan works, but the Justice Department said that it still had concerns over Google’s exclusive access to those works.
Additionally, the DoJ attorneys expressed reservations on the antitrust front, warning that the revised settlement agreement “confers significant and possibly anticompetitive advantages on Google as a single entity, thereby enabling the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats.”
Google has defended its agreement for broadening access to vast stores of books that would have otherwise been lost to obscurity.
In a statement e-mailed to InternetNews.com, the company noted that the Justice Department had praised many of the changes made to the settlement, saying that the filing “once again reinforces the value the agreement can provide in unlocking access to millions of books in the U.S.”
“We look forward to Judge Chin’s review of the statement of interest from the Department and the comments from the many supporters who have filed submissions with the court in the last months,” Google said.
Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.
