“One thing is for certain – the proposed Google Book Settlement, as it’s currently written, will not go through.”

by Peter Brantley

Now that we’ve had a chance to review the Justice Department’s filing in more detail, we recognize that one thing is certain – the proposed Google Book Settlement, as it’s currently written, will not go through. Even Google seems to agree with this — after months of fighting against any change to the settlement, they acknowledge that the settlement must be profoundly altered. That’s good news for anyone who wants to protect innovation, competition, and the public interest as we evolve the world of books to the digital age.

The Justice Department thoughtfully raised some very substantive and serious issues in its brief, many of which are the same issues that the Open Book Alliance and others have been talking about for months. In particular, the Justice Department recommends the option of moving from an opt-out to an opt-in for all of the books in the settlement, and it also raises significant antitrust concerns with no roadmap at all for how to resolve them.  In the words of the Justice Department’s brief:

‘As a threshold matter, changing the forward-looking provisions of the current Proposed Settlement applicable to out-of-print rightsholders from an opt-out to an opt-in would address the bulk of the Rule 23 issues raised by the United States.’

‘This de facto exclusivity (at least as to orphan works) appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription. The seller of an incomplete database – i.e., one that does not include the millions of orphan works – cannot compete effectively with the seller of a comprehensive product. Foreclosure of newcomers is precisely the kind of competitive effect the Sherman Act is designed to address.’

It would appear that these and the other substantive concerns raised by the Justice Department and other stakeholders set a high bar for Google and their partners to meet.

The Justice Department acknowledges that this case effects the public interest. It’s broader than a typical class action settlement between private parties, and the process going forward must include more voices. Open Book Alliance looks forward to being an active voice among the many stakeholders in future discussions.