After Government Objections to Google Settlement, What Comes Next?

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New York, September 22, 2009 – Now that the government has voiced its objections to a settlement that would allow Google to create a massive digital library, there may be a roadmap to a deal that will pass muster in the courts, says the executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School.

 

June Besek noted that the filing the Justice Department made with the U.S. District Court in New York late Friday indicated negotiations between Google and the authors and publishers who sued the company were ongoing and that it might be possible to overcome objections. 

 

“I think the filing suggests Justice has been involved somewhere behind the scenes,” Besek said. “This filing tried to be constructive. It wasn’t trying to get rid of the settlement, but to find a way to go forward and still make it legal.”

 

Google had reached a $125 million settlement last year in a class-action, copyright-infringement suit with the Authors Guild and the Association of American Publishers. It would allow Google to create the world’s biggest digital library. The company would have access to all domestic and foreign books under copyright protection in the U.S. unless the rights holders opted out.

 

Numerous objections to the settlement have been filed, including from the French and German governments, several states, Microsoft, Amazon, and prominent authors like Michael Chabon. But the Justice Department’s concerns may have been what spurred the litigants to make changes in the settlement, Besek said.

 

“It sounds like the parties have already signaled they’re prepared to make some modifications to the agreement,” Besek noted.

 

Among the areas that need to be addressed:

 

 

 

 

“I think Google may be able to live with greater access by competitors than the current agreement provides,” Besek said.

 

U.S. District Judge Denny Chin, who must approve any settlement, had scheduled a hearing on the case for Oct. 7, but put it on hold while the parties continued negotiations. "Under all the circumstances, it makes no sense to conduct a hearing on the fairness and reasonableness of the current settlement agreement, as it does not appear that the current settlement will be the operative one,"Chin wrote in a letter to the litigants.

 

Besek cautioned a resolution of the case is likely off in the distance. One requirement of class-action suits is that affected members of a class – in this case, authors and publishers – be given proper notice of a settlement as well as the opportunity to opt out. That was an especially complex and expensive task in this case, as the settlement agreement provided for notice in over 100 countries and in 30-40 languages.

 

Besek expects that process would have to be repeated under the revised settlement, possibly giving rise to a new round of objections.

 

“I think everyone involved knows you’re not going to please everybody,” Besek said.

 

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