Group Files Google Settlement Protest With Justice Department

April 9, 2009
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April 9 – April 16, 2009 Edition Group Files Google Settlement
Protest With Justice Department

Consumer Watchdog.org has filed a complaint with the Justice Department asking it to delay the May 5 deadline for protests against the $125 million Google settlement with the Association of American Publishers and the Authors Guild. The settlement, which broadens Google's ability to scan and sell copyrighted books, is pending before the courts, and writers and publishers have only until May 5 to protest. The settlement creates a Book Rights Registry, funded by Google, to act as a clearing house for publishers, authors ,and agents.

“This settlement was negotiated by the parties in the suit and there has been no opportunity to represent and protect the broad interests of all consumers,” said John M. Simpson, a consumer advocate with Consumer Watchdog. “This deal simply furthers the relatively narrow agenda of Google, The Authors Guild and the Association of American Publishers.”

John Simpson charges that the settlement “furthers the narrow agenda of Google, the Authors Guild and the Association of American Publishers. We call on the Justice Department to intervene and bring about changes that will truly serve the public interest.”

The Watchdog group objects to the agreement on the basis that it creates a “most favored nation” status for Google, thus guaranteeing Google the same terms that any future competitor might be offered. Mr. Simpson said in a letter to the Justice Department that under the most favored nation clause the [Book Rights] registry would be prevented from offering more advantageous terms to , for example, Yahoo! or Microsoft, even if it thought better terms would be necessary to enable either to enter into the digital books business and provide competition to Google.

The consumer group also objects to a mechanism for Google to deal with “orphan works.” Orphan works are works under copyright, but with the rights holders unknown or not found. “The danger of using such works is that a rights holder will emerge after the book has been exploited and demand substantial infringement penalties. The proposed settlement protects Google from such potentially damaging exposure, but provides no protection for others. This effectively is a barrier for competitors to enter the digital book business,” the letter said.

Consumer Watchdog wants the most favored nation provision eliminated to remove barriers of entry and the orphan works provision extended to cover all who digitize books. Those who wish to file a complaint can do so at http://www.consumerwatchdog.org/about/

The effects of the settlement reach far beyond authors who are making claims against Google in the Court case. The impact will be felt by virtually all book authors, publishers, and agents because Google–as part of the Class action settlement–plans to offer participants in its existing worldwide Book Search Partnership Program the opportunity to transfer their rights to the Google Library Search Program. While the court settlement is limited to use in the United States, Google can enter partnership relationships with anyone anywhere.

Harvard University, University of Georgetown, the Columbia Law Center and others have voiced strong reservations about the settlement, pointing out that while Google's Book Search program provides convenience for users, the company could monopolize warehousing of published works very soon.

New York Law School associate professor James Grimmelmann speaking in a February 27 panel discussion, titled, "Google and the Future of Higher Education" at Georgetown University, criticized the class-action lawsuit in general, saying its settlement allows Google to "restructure the book industry" without legislative or agency oversight.

"The courtroom is not supposed to be the place where we resolve the entire interests of huge, gigantic, million-member classes," Grimmelmann said. "The settlement is still a net-positive for society. Good things can come of corrupt practices. But we should be concerned that this is not how it should be done and the result is not what society has a right to expect."

"With the extent of its scanning, Google Books could become "the only game in town," Grimmelmann said.

Consumer Watchdog, formerly the Foundation for Taxpayer and Consumer Rights is a nonprofit, nonpartisan organization with offices in Washington, DC and Santa Monica, Ca. www.ConsumerWatchdog.org. Read the letter here.

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