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On Friday, the Department of Justice Antitrust Division submitted a "Statement of Interest of the United States of America" to the court about the proposed Google Book Search settlement. Its conclusion: "the Proposed Settlement does not meet the legal standards this Court must apply." It seems the DOJ shares both our hopes for and appreciation of the Google Book Search service and many of the concerns about the settlement that we expressed in our amicus brief filed two weeks ago.
The bullet-point version of the statement:
The portions of the proposed settlement which purport to license new, open-ended uses of works belonging to rightsholders who are not present likely go too far.
Orphan and foreign rightsholders are not adequately represented: Orphans' interests directly conflict with those of the class representatives, while foreign authors who never published or registered works in the U.S. are represented by U.S. authors who have.
The record needs more development to show that class members were adequately notified of the proposed settlement's terms.
The proposal raises antitrust concerns because of the price-setting powers given to the Book Rights Registry and Google: Among other things, it creates industry-wide price-setting formulas, default prices for all books, and allows authors of claimed works to effectively set prices for competing orphan works.
The settlement, as written, would give Google de facto exclusive rights for the digital distribution of orphan works.
In the end, the DOJ recommended that the parties modify the proposed settlement to address those concerns and bring a new proposal to the court for consideration. For the nitty gritty details, read their full filing.