It was a tough summer for the Google book search settlement. The proposed deal, which would give Google Inc. the right to scan and display millions of copyrighted books, was lambasted as anticompetitive by rivals (Microsoft Corporation, Amazon Inc., and Yahoo! Inc.), the head of the U.S. Copyright Office, and the governments of Germany and France (to name just a few). In September the U.S. Department of Justice urged the federal district court judge hearing the case to reject the settlement as constructed, because of its potential violations of antitrust, copyright, and class action law. Even digital rights advocates, who usually cheerlead for new open forms of information dissemination, gave it hell. Brewster Kahle, founder and director of the nonprofit Internet Archive in San Francisco, called the proposed settlement “a new and unsettling form of media consolidation.
Despite this opposition, a deal still seems likely. The Justice Department could have effectively killed the agreement, but instead tempered its criticism of the settlement with praise for its aspiration, and even suggested possible fixes for some of the problems it identified. Lawyers for litigants Google, The Authors Guild, and the Association of American Publishers are scrambling to revise the settlement to address the Justice Department’s concerns. They don’t have long. Manhattan federal district court judge Denny Chin recently set a target date for the filing of an amended settlement for November 9, and said that a fairness hearing will likely take place at the end of December or in early January. At that fairness hearing, Judge Chin can either approve or reject the settlement, but lawyers involved in the process say that even a rejection wouldn’t be a death sentence for a settlement, since the judge could suggest specific fixes for a deal. (Whatever the outcome, Judge Chin’s involvement in the process is likely to end soon. On Tuesday, President Barack Obama nominated him for a seat on the U.S. Court of Appeals for the Second Circuit).
