Google Settlement Revision Post-Mortem

In the wake of Friday’s late night release, we’ve had an opportunity to review the revised settlement.  And, even though Google warned us that little would change from the first widely opposed settlement, we still found the rehash anti-climactic.

At its heart, this is the same flawed agreement with the same terminal shortcomings as before.  While we look forward to a continued dissection of the settlement over the coming days, the following core elements render it DOA:

  • The settlement still allows Google to purchase a monopoly on digital books. For less than 3 percent of the cash it took home in 2008, the world’s largest advertiser gets the exclusive right to millions of books and immunity from future litigation.  It will be impossible for any competitor to receive the same deal.
  • Authors must still opt-out of the agreement even if they have not given their consent to be included in the deal. This compulsory inclusion is bad for authors and consumers.

  • Google’s claims regarding the Unclaimed Works Fiduciary are misleading and simply false. The UWF will NOT be able to license works to competitors since such a license is not permitted under the law. Only Congress has the power to give these rights; Google is seeking an exclusive “end run” around Congress’ power to set copyright law.
  • Consumer privacy has NOT been protected or improved. ACLU and EFF experts agree that the deal lacks basic safeguards consumers would expect from any public library.
  • Academic libraries and independent researchers are still at the mercy of pricing from Google’s one stop book shop. This is a for-profit play by a profit maximizing company.  Do we really want the card catalogue of the future running advertising?
  • Instead of negotiating with stakeholders, Google cuts them out. For all the talk of building a new Library of Alexandria, when foreign language publishers asked Google hard questions the response wasn’t flexibility or concessions.  Instead, the squeaky wheel was amputated.   Despite this, international books already scanned by Google will remain in the database where they can be monetized.

In releasing the warmed over settlement, Google stated their regret at being forced to make revisions to the original agreement but lamented that there was simply no other way for a deal to be done.  Fortunately for the public and competitors there is another way.

Mandates via the courts will clearly not deliver the balanced agreement needed to satisfy stakeholders.  Google must give up their go-it-alone mentality and recognize that the path to success will come from competition and respect for broader public interest.

Watch this space for more detailed analysis in the days ahead.

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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