Letters Begin Flying in Objection to the Proposed Google Book Search Settlement

We are starting to see objections to the Google Book Search Settlement this month in advance of the May 5th deadline set up by the court. The first comes from the consumer advocacy group Consumer Watchdog (found by way of the American Libraries news feed). They have submitted a letter to the U.S. Justice Department asking the antitrust division to delay the settlement until the “‘most favored nation’ clause favoring Google is removed and the deal’s ‘orphan works’ provision is extended to cover all who might digitize books, not only Google.” The letter in PDF is available on the Consumer Watchdog website. The objections revolve around the provision that require the Books Rights Registry to give Google the same terms as anyone else who enters into agreements with the Registry (noting that more favorable terms might be required by a new party in order to compete with Google) as well as the fact that the copyright infringement protection for digitizing orphan works only extends to Google.

The American Libraries news piece also says: “ALA, in conjunction with the Association for Research Libraries and ALA’s Association of College and Research Libraries, plans to file an amicus brief with the court about the settlement.” We’ll likely see that before the May deadline.

Another objection came from the Open Content Alliance. On behalf of the OCA, Internet Archive filed an intervention request with the court seeking to become a party to the settlement. The document, located on the Scribd service (an odd choice, if you were to ask me), is asking to add itself as a defendant because the rights of internet content providers and of the public were not represented in the negotiations. In the paragraph in the middle of the letter, it says “All other persons, including Internet content providers such as the [Internet] Archive, would not be able to use orphan works broadly without being exposed to claims to infringement.” And further down: “Google has negotiated for itself certainty in its use of orphan works under the terms of the settlement through the mechanism of the [Books Rights Registry], whereas marketplace competitors are able to negotiate with the [Registry] only for commercial exploitation of those works with identified rightsholders.”

Stay tuned — I think this is going to get more interesting in the next few weeks.

Update

17-Apr-2009
The O’Reilly Radar blog has a post by Pamela Samuelson, professor at the University of California at Berkeley with a joint appointment in the School of Information and the School of Law, on this very topic. While not a formal filing with the court, she comments on the legal implications of the settlement in very clear language.
This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the ‘dead souls’ to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

The text was modified to update a link from http://www.consumerwatchdog.org/corporateering/articles/?storyId=26117 to http://www.consumerwatchdog.org/newsrelease/consumer-group-calls-justice-department-intervene-google-book-settlement on November 13th, 2012.

The text was modified to update a link from http://books.google.com/booksrightsholders/ to http://web.archive.org/web/20081219194925/http://books.google.com/booksrightsholders/ on August 22nd, 2013.

(This post was updated on 04-Jun-2014.)