At Deadline for Comment on Google Deal, Grimmelmann & Co. Recommend Rejection
Influential voices from New York Law School say amendments not good enough
Norman Oder -- Library Journal, 01/28/2010
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- Deadline today for comments
- Deadline February 4 for Department of Justice
- Fairness hearing February 18
- Open Book Alliance files brief, cites advantage in "tail queries"
As the deadline to file objections to or opt out of the Google Book Search settlement arrived today, the Institute for Information Law and Policy at New York Law School, an influential voice in the discussion of the issue, has filed additional comments declaring that the Amended Settlement Agreement does not adequately address concerns previously expressed and should be rejected.
The Department of Justice’s comments are due February 4, with a fairness hearing scheduled for federal court in New York on February 18.
The Institute's letter states:
Accordingly, this Court should reject the Amended Settlement Agreement. While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way. Approving the Amended Settlement Agreement would set a dangerous precedent for future cases and undermine democratic political processes.
James Grimmelmann, the professor who's led the school’s project to investigate the deal, observes:
This filing reflects the continuing evolution of my thinking on the settlement. I have gone from “Approve the settlement.” to explaining “How to Fix the Google Book Search Settlement” to being deeply concerned about the means it uses.” In September, our filing recommended further consultation and improvements to the class action process, in the hopes that sufficient oversight could keep it accountable and operating in the public interest. The letter filed today concludes that the way the settlement uses a class action is not salvageable.
More comments
Also, various publishers and authors have weighed in, according to the Public Index.
University of California, Berkeley, law professor Pamela Samuelson, a critic of the deal, writes in the Huffington Post:
For what it's worth, I'm objecting to the settlement, not opting out. Academics like me tend to want as many books as possible to be widely available to the public. The more opt-outs there are, the less likely GBS is to achieve the lofty ambitions of being a universal digital library to make the knowledge in books more accessible to all. My objection is aimed at making the GBS deal fairer for academic authors whose books constitute a substantial majority of books in GBS.
OBA brief
The Open Book Alliance, a fierce critic of the deal, has filed an amicus brief opposing the settlement, based on five grounds, four of them excerpted below:
“Control of the Search Market is Google’s True Goal.” Google Books Director Daniel Clancy has stated that Google did not undertake the book-scanning project in order to make money through digital book sales or library subscriptions. The brief explains how “[d]igital rights to virtually all out-of-print books provide Google with a decisive advantage in responding to tail queries,” defined as rare or obscure search requests.
"Secret Side Deals Among the Parties Actually Control The Settlement Terms.” Google has signed “Partner” agreements with thousands of publishers.... As a result, notwithstanding the millions and millions of books Google claims it has digitized, the Registry’s corpus may well end up with only a few million volumes.
Google’s Anticompetitive Bundling Undermines Competition in Digital Book Distribution.” Google has already undermined competition by giving preference to brands such as Google Maps over competitors like MapQuest.
“The Amendments Fail to Resolve Antitrust Objections.” The settlement bestows upon Google a de facto exclusive license to millions of books and continues to set a price floor for out-of-print books. The big publishers continue to look to the settlement to dampen price competition and stabilize prices.
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At Deadline for Comment on Google Deal, Grimmelmann & Co. Recommend Rejection
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