The Google Books settlement is back. On Friday, Google and the author and publisher groups that originally sued over the search engine's massive scanning operations offered a revised version of the settlement.
Back in September, Google pulled the proposed settlement on the eve of a federal district court's decision on whether to approve the deal. While the deal faced blistering attacks from Google competitors, consumer and privacy groups, and the Open Books Alliance, it was serious concerns voiced by European governments and the U.S. Justice Department that forced reworking of the deal.
Europe Out of the Deal
The Justice Department made no initial response to the new proposal. A spokesperson said the department's investigation is ongoing.
The proposal's most drastic change is that it removes most of Europe from the agreement. The European Union and individual countries like Germany objected strenuously to the deal because it would have allowed Google to scan European books never offered for sale in the U.S. Britain, Canada and Australia are included in the proposal, however.
The revised deal also offers a number of accommodations to authors, including the right to reject arbitration and the appointment of an independent fiduciary to represent the rights of authors who have not opted out.
'Nip and Tuck'
The deal's harshest critic, the Open Book Alliance, said the revised deal fails to address fundamental problems. "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' 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-Chairman Peter Brantley said.
While opponents like OBA may never be satisfied with any settlement, Tim Bajarin, principal analyst with Creative Strategies, wrote in an e-mail that "the Google goal and mission is a good one and needs the cooperation of authors and copyright holders to be really effective." While declining to predict whether Justice or the judge will approve this version, he said "there will be much more wrangling on both sides before the Google Books program will really be valuable to readers all over the world."
Perhaps the most important opposition from Justice is the charge that the original settlement rewrote copyright law by giving Google a competitive advantage to deal in so-called orphan works (works under copyright, but for which the copyright owner can't be found) and giving Google immunity from future copyright-infringement lawsuits.
The new settlement drops the immunity provision but the settlement would still fundamentally change the rules of copyright, attorney Gary Reback said. "I don't see how this fixes anything about orphans," he said in an interview with The Wall Street Journal.
In addition, the ACLU and the Electronic Frontier Foundation continue their objections to what they say are a lack of privacy protections. "Readers should be able to use Google Books search without worrying that the government or a third party is reading over their shoulder," a blog post from the ACLU says. "No settlement should be approved that allows reading records to be disclosed without a properly issued warrant from law enforcement and court orders from third parties."