Parties seek Google Books hearing delay; new deal brewing

Updated 2:18 p.m. PDT with comment from Google.

The parties involved in the Google Book Search settlement have asked a federal court to postpone an October hearing to approve the proposed settlement while they work out a new deal.

When the Department of Justice made it clear last Friday that it could not support the settlement as written--which would give Google unique rights to scan out-of-print books still protected by copyright law--it said the parties were in talks to amend the settlement. In a joint brief (click for PDF), lawyers the Authors Guild, the Association of American Publishers, and others asked Judge Denny Chin to delay a hearing on whether to approve the settlement while the parties work out the new terms of the settlement with the DOJ.

"Because the parties, after consultation with the DOJ, have determined that the Settlement Agreement that was approved preliminarily in November 2008 will be amended, plaintiffs respectfully submit that the Fairness Hearing should not be held, as scheduled, on October 7," the plaintiffs in the case said in a briefing. They said Google had given them permission to indicate that the company was not opposed to the motion.

The Open Book Alliance, a group of companies and organizations opposed to the settlement, declared victory.

"This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition. It's also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead," the alliance said in a blog post Friday.

In a statement, Google has this to say: "The plaintiffs moved for an adjournment of the final Fairness Hearing, currently scheduled for October 7. We are considering the points raised by the Department of Justice and others, and we look forward to addressing them as the court proceedings continue."

The parties had originally settled in October 2008, ending a dispute over Google's legal right to scan copyright protected out-of-print books. But the settlement gave Google the sole legal right to scan those books, raising anticompetitive fears and provoking strong opposition from authors, academics, privacy advocates, and some libraries.

Judge Chin had been scheduled to decide whether or not the settlement should go forward in a hearing at the U.S. District Court for the Southern District of New York. The parties asked for a November 9 status conference to discuss the modifications they plan to make to the settlement.

It's not clear whether Judge Chin will automatically approve the request. He could still hold the hearing as scheduled and make his own decision about whether or not to approve the settlement, although that seems highly unlikely given the recent developments, especially the involvement of the DOJ.

It's likewise not clear what types of modifications to the deal are being discussed. The DOJ's main objection to the deal was that "the Proposed Settlement seeks to implement a forward-looking business arrangement rather than a settlement of past conduct," which is not what class-action suits are designed to do, it said in a filing with the court last Friday. It is also concerned about potential violations of antitrust law, concerns that Google has grown accustomed to hearing with mounting government scrutiny this year.

[bigpicture]

I have worked for a company for most of my working life that had this same kind of problem. A relatively new kind of business, required bleeding edge types of ideas and technologies to make it efficient and viable. The implementing of these ideas as to the methodologies used and the impacts and ramifications, (which sometimes had far reaching effects) were subject to endless debate and regulation.

Then once these were hammered down others could ride on the coat tails. Eventually the company got tired of doing point all the time, forming new organizations, new bodies of interested parties etc. and just let the others take it on the chin and ride their coat tails instead, except do it better and be more competitive.

[tech_crazy]

Ya right! That could have been true of the company you worked for but it sure isn't the case with Goog.

[dowell100]

The Fairness Hearing should probably go on so the public can see the total extent of Google underhandedness. I hope the Department of Justice keeps their thumb on Google. They have no right to copy intellectual property owned by others... in any circumstance... until they have received the prior written permission of the copyright holder.

The simple truth is, the right to copy is held by the copyright holder, not Google. The Google idea that copyright holders can "opt out" is just a subtle form of robbery on Google's part. Google should be allowed to pirate copies of books, which is what is happening without prior written permission. And Google should have thought about that before they embarked on this Utopian scheme of scanning all the world's book. Let them expend capital if they want to do it, not rob copyright owners.

[dowell100]

typo

Google should NOT be allowed to pirate copies of books, which is what is happening without prior written permission.

[knowles2]

How about we let the courts decide whether they pirated anything.
I think the fact the side was sueing came to arrangement which is pretty pro google shows that they were not anywhere near a 100% percent certain of winning, in fact the deal sound like they themselfs felt they were certain to loose the case, and google were certain to win of faire use. An so they decided to take the money an give a bunch of books which no one seem to want to read anyway.

[Seaspray0]

Tom, thanx for the article. I will be eagerly awaiting your next update on this subject. The results of this could have far ranging effects on how material can be presented on the internet.

[Douglas_Fevens]

Even during these delays Google Inc. and their library partners that supply them with in copyright works, continue to scan these pirated works into the Google virtual library. A cease-and-desist order should be issued to stop this illegal activity until a remedy can be found.

Douglas Fevens,
Halifax, Nova Scotia
The University of Wisconsin, Google, & Me
www.facebook.com/douglas.fevens

[TomPhilo]

Which is better? Is it better for society to have a complete list of books in library which no one is allowed to look for 75 to 150+ years at or have a list of books in a library that people can check out and read? Do the "needs of the many outweight the needs of the few" to quote a Star Trek line? If this was trademark law it would be easy - the owner must actively defend the trademark or else it goes into the public domain. With our existing worldwide and US rules on copyrights someone can just publish and single copy and potentially for the next 150+ years it would never be allowed to be read by anyone at all unless they got a hold of that one individual copy.
This gets into a whole lot of what if scenarios: force copyright owner to publish on demand or lose rights to it (it they do not sell any copies they make no money, thus refusing to sell means they don't care about money and thus should it go public domain?) Dead owners automatic public domain? Publishers who no longer exist and no one bought the rights to it -- auto public? etc etc etc. The best solution would be revert back to the original 1920s type model: REAL limited rights of time of 12 years with one renewal of 12 before it goes public domain. That gives the owner 24 years to earn money off their work. As it is now someone born today could live to be 116 and STILL could look at 70+ years to see a piece of work published on the same day they were born before it gets into the public domain - if the person who created it was 5 years old!

Tom Philo
http://www.taphilo.com

[knowles2]

I personaly think this "The owner must actively defend the trademark or else it goes into the public domain" should be incorperated into every copyright law out there. Obviously the trademark exchange for copyright.

[knowles2]

At this rate, google may just decide it dump it all, win the fair use argument and just keep the library for internal company use.
Which is a shame for the public.