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Sherwin posted last week about the amended Google Books settlement and our amicus brief expressing our opposition to the settlement as written and our concern that it would lead to a monopoly on providing access to orphan works. The DOJ's Antitrust Divison has once again weighed in on the settlment (their previous brief is here, with our analysis here). Their conclusions appear to be largely the same as ours: "Although the United States believes the parties have approached this effort in good faith and the [Amended Settlement Agreement (ASA)] is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation."
The DOJ's filing then goes on to detail their remaining concerns, along with some new and interesting legal analysis for those inclined to read deeper:
- The amended settlement effectively licenses rights too far removed from the rights allegedly infringed by Google.
The potential for Google to gain de facto exclusive rights to unclaimed works through the settlement remains unchanged.
There are remaining questions as to whether the class representatives adequately represent foreign rightsholders, and whether the Unclaimed Works Fiduciary is sufficiently independent to represent authors of ophaned and unclaimed works.
The court should investigate whether the (extensive) notice has been sufficiently effective, given the scope of the settlement.
Further scrutiny is required on portions of the settlement which allow Google to resolve "highly individualized disputes between author class members and publisher class members" about who owns the rights to digital publication in a way that allows only Google to use those works.
There remain antitrust concerns about class-wide pricing and Google's ability to force renegotiation of the price of only commercially available books.
It is unclear whether the Unclaimed Works Fiduciary has the power effectively to protect the interest of authors of unclaimed works from anticompetitive pricing.
The DOJ concludes that the settlement may be approvable if it is made "opt-in," by narrowing the scope of both the class and the relief, or through a number of smaller fixes. For more details about the amended settlement and our concerns, I highly recommend reading all of Sherwin's post, and for the real nitty-gritty, check out our brief and, of course, the DOJ brief.