11th-Hour Filings Oppose Google’s Book Settlement

Wednesday, September 9, 2009

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By MIGUEL HELFT Published: September 8, 2009

SAN FRANCISCO — After a flurry of last-minute filings on Tuesday, a federal judge must now begin untangling the mountain of competing claims about how a legal settlement granting Google the right to create the world’s largest digital library and bookstore would affect competition, authors’ rights and readers’ privacy.

Skip to next paragraph Related Google Tackles Fears on Rights in Book Deal (September 8, 2009)

The $125 million proposed settlement among Google, the Authors Guild and the Association of American publishers, which is awaiting review by Judge Denny Chin of the Federal District Court for the Southern District of New York, has prompted dozens of opposing filings from individuals, rival companies like Amazon and Microsoft, advocacy organizations, groups representing authors and publishers and even some foreign governments.

It has also received the support of companies like Sony, civil rights groups and some antitrust and economics experts in academia.

Legal scholars say that Judge Chin will have to address not only whether the settlement is fair to the authors, publishers and rights holders covered by it, but also whether it benefits the public at large.

“The number and quality of opposition filings is very unusual,” said Jay Tidmarsh, a professor of law at Notre Dame Law School. “The court is going to have to look at the public interest in the settlement.”

The agreement, which would bring millions of rarely seen books online, has clear benefits to readers and authors. But scholars say the judge is likely to weigh those benefits against arguments that the settlement would limit competition. Opponents say it would give Google a quasi-exclusive license to profit from millions of out-of-print books and create a consortium that would have power to set prices for digital books. Google, the Authors Guild and the Association of American Publishers have vigorously disputed those claims, but the claims are being investigated by the Justice Department.

Opponents have raised other issues including contending that the settlement tramples on the rights of some authors and that it does not protect the privacy of readers. The court has the power to either approve or strike down the settlement, an option that would revive the lawsuits filed in 2005 by the authors and publishers against Google over its plan to digitize millions of books from libraries without authorization from rights holders. But if Judge Chin finds problems with the settlement, he could also offer the parties a road map for overcoming them.

“If the judge has some significant concerns, it is much more likely that he would invite the parties to address those concerns rather than reject the agreement,” said Andrew I. Gavil, a law professor at Howard University. Professor Gavil said that Judge Chin was likely to give special consideration to the opinion of the Justice Department, which has until Sept. 18 to make its views known. A hearing on the settlement is scheduled for Oct. 7.

On Tuesday, several groups filed briefs in opposition, including Microsoft and Yahoo, and a coalition representing those companies and others. The coalition, which calls itself the Open Book Alliance, opposes the agreement on antitrust grounds. The group is co-led by Gary Reback, an antitrust attorney in Silicon Valley who in the 1990s helped persuade the Justice Department to file its landmark antitrust case against Microsoft. He said the court could address some of the antitrust objections by forcing Google to license its database of digital books to others.

“Google should be ordered to license the database with all attendant rights to a number of competitors, under the supervision of the Justice Department,” Mr. Reback wrote in the brief. He traced the birth of Silicon Valley to a similar “compulsory license” mandated by the Justice Department. “Silicon Valley exists precisely because the Antitrust Division ordered AT&T to license its key invention, the transistor, for nominal payments,” he wrote.

Defenders of the agreement say the antitrust concerns are unfounded, and argue that others besides Google could obtain similar licenses without any mandates from the court.

“We have never said that the same kinds of outcomes would not be available to Microsoft or Amazon or anyone else who is willing to make the same investments,” said Richard Sarnoff, former chairman of the Association of American Publishers and co-chairman of the American unit of Bertelsmann, the parent company of Random House. “We have a road map to do it now.”

Sign in to Recommend Next Article in Technology (2 of 17) » A version of this article appeared in print on September 9, 2009, on page B4 of the New York edition. Posted by BiodunIginla at 2:07 AM Labels: bbc news. biodun iginla, digital culture, digital library and bookstore, Google