Google books update

DoJ concerns

The DoJ submission to the court gives some broad hints about the US government attitude. Note that it declares itself to be a "preliminary explanation" and that the DoJ "antitrust" investigation into whether the Settlement would create a monopoly is not complete.

General policy

The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called "orphan" works. The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit...

The US government has, then, read Google's press releases.

Foreign rightsholders (that's us) and parents of orphans

The Proposed Settlement raises concerns about the adequacy of representation afforded to absent class members, especially owners of "orphan" out-of-print works and foreign rightsholders... As the filings of France and Germany make clear, some of the United States’ trading partners have serious concerns about application of the Proposed Settlement to foreign authors...

Wait. Hold your horses. At least try harder to ensure that every author from Alabania to Zimbabwe knows what's being done in their name. Probably, rewrite the settlement to give authors (and publishers) outside the US more control over use of our works.

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.

We're going to be hearing a lot about "Rule 23": it defines what makes a "class action" settlement legitimate in US law. To meet its terms, the DoJ suggests changing the Settlement so that Google will not distribute your out-of-print book unless you and your publisher say so.

unclaimed profits could be devoted entirely to the search for rightsholders of orphan works, and the Registry could be authorized to petition the court for an alternative distribution based on a showing that search efforts had been fully exhausted. Another possibility would be to appoint persons to the Registry to serve as guardian representatives of orphan works owners.

The DoJ is generally opposed to the idea that income from the works of authors who cannot be found be distributed to authors who can - which is probably a feature of UK proposals. But DoJ would consider an independent board..

A monopoly?

the parties contend that the Proposed Settlement’s pricing terms should be viewed not as a form of horizontal collective action by publishers and authors actionable under Section 1 [of the anti-monopoly Sherman Act], but simply as a unilateral offer by Google to each individual rightsholder to contract on specified terms. The Department is not persuaded by this description.

Nor are we, if you put it like that...

Nor is it reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations

Oooh, sarcasm!

It's unclear how the DoJ envisages the Settlement being revised so it does not set up a monopoly, except that it suggests:

some mechanism by which Google's competitors could gain comparable access to orphan works (whatever such access turns out to be assuming the parties negotiate modifications to the settlement)

It looks as though the hearing that opens on 7 October could be quite short:

the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved.

How long this will go on - who knows?