Right up against a deadline to submit a revised settlement agreement to a judge overseeing a lawsuit filed against Google by the Authors Guild and the Association of American Publishers, the parties filed their second take. The original settlement agreement had come under fire from many parties but most notably from the U.S. Department of Justice, whose withering and broad critique of the deal led the judge to demand revisions in the proposal.
At issue is Google's Book Search program, which drew a class-action lawsuit in 2005 when authors and publishers challenged Google's plan to scan hundreds of thousands of books without always securing advance permission from copyright owners. The parties crafted a settlement in October last year that was broadly criticized. The DOJ's concerns about the settlement's compatibility with copyright and antitrust law were the final nail in the coffin of the original draft, and Judge Denny Chin from the U.S. District Court for the Southern District of New York gave Google and the plaintiffs until midnight Friday to submit a revised proposal.
Google listed the following revisions in a statement issued early Saturday:
— The settlement will only include books that were either registered with the U.S. Copyright Office or published in the U.K., Australia, or Canada. Rightsholders in those countries are joining the case as named plaintiffs.
— The Book Rights Registry that Google and the plaintiffs had agreed to establish will search for rightsholders who have not yet come forward and to hold revenue on their behalf. The settlement now also specifies that a portion of the revenue generated from unclaimed works may, after five years, be used to locate rightsholders, but will no longer be used for the Registry's general operations or redistributed to other rightsholders. The Book Rights Registry is intended to manage a royalty system to compensate authors and publishers from the sale of digitized books.
— Explicitly written into the settlement is the provision, offered by Google in September, that any book retailer will be able to sell consumers online
access to the out-of-print books covered by the settlement, including unclaimed books.
— The revision clarifies that rightsholders can choose to make their books available for free or allow re-use under Creative Commons or other
licenses. Rightsholders can also choose to modify or remove restrictions placed on Google's display of their books, such as limits on the number of pages that users can print.
— The Registry is now free to license to other parties without ever extending the same terms to Google.
The Open Book Alliance immediately came out against the revised settlement, issuing a statement early on Saturday claiming that the new proposal does not address “the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest.”
“By performing surgical nip and tuck, Google, the AAP, and the AG are attempting to distract people from their continued efforts to establish a monopoly over digital content access and distribution; usurp Congress's role in setting copyright policy; lock writers into their unsought registry, stripping them of their individual contract rights; put library budgets and patron privacy at risk; and establish a dangerous precedent by abusing the class action process,” Open Book Alliance co-chair Peter Brantley said in the statement.