It Doesn’t Add Up

One thing that clearly came out of the October 7th court hearing was that the concerns raised by the Department of Justice alone would require substantial changes to be made to the proposed book settlement by the parties.

But it has quickly become apparent that Google, the Authors Guild, and the AAP have very little interest in addressing any of those concerns raised by the public and undertaking a substantial and fundamental revision of the settlement. Instead, they going out of their way to state that only minor, cosmetic changes, if that, are needed to the settlement.

Below is a he-said/she-said summary of the contradictions between the DoJ’s take on the settlement, and those of Google and its partners.

The bottom line is this: there is a clear directive from the Department of Justice and other stakeholders like public interest organizations, library associations, privacy advocates and leading academics, to go back to the drawing board. Google and its partners say they want to get this settlement approved in a way that benefits the public good. But they aren’t willing to make the fundamental changes needed to do so.

It doesn’t add up.

Department of Justice: “Nonetheless, the breadth of the Proposed Settlement – especially the forward-looking business arrangements it seeks to create – raises significant legal concerns.”

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, on whether the amendments would be minor or more significant — “may be in the eye of the beholder.”

Department of Justice: “As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.”

Paul Aiken, Author’s Guild: “The basic deal is not changing.”

Department of Justice: “This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.”

Eric Schmidt, Google: “We don’t want to change it unless we need to.”

Department of Justice: “Nor is it reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully.”

Eric Schmidt, Google: “It is possible for another company to do what we are doing.”

Sergey Brin, Google: “The companies complaining now…there would be nothing stopping them from achieving the same thing.”

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What Experts Are Saying About the Settlement…

Important Dates

December 14, 2009
Notice begins

January 28, 2010
Deadline for authors to opt out of the settlement

January 28, 2010
Deadline to file objections and/or amicus briefs

February 4, 2010
Deadline to file notice of intent to appear at Fairness Hearing

February 4, 2010
DOJ response

February 11, 2010
Plaintiffs move for final approval

February 18, 2010
Final Fairness Hearing

March 31, 2011
Deadline to claim Books and Inserts