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John Timmer - Jan 29, 2010 9:12 pm UTC

With everyone from authors to librarians upset about the initial settlement of the Google Books copyright lawsuit, and the US Department of Justice hinting that it was likely to be illegal, the parties involved withdrew it from consideration. After some modifications, it was resubmitted to the court; the deadline for comments on the new version passed yesterday, and many of the same parties submitted new briefs. But anyone who read the initial round may feel like they're experiencing déjà vu when reading the new batch. For most of the settlement's critics, very little has changed, and their initial complaints remain.

To be sure, Google has now won over a number of authors groups, including groups from Australia, Canada, and the UK. But in the list of filings tracked by the public index, objections abound. Some of these come from the authors themselves. Ursula K. Le Guin, for example, organized over 350 authors who objected to the fact that the agreement would apply to anyone who didn't opt out of it, a condition that most observers consider a major change in US copyright policy.

The Estate of Richard Wright raises an interesting issue in a filing that otherwise borders on a diatribe. One thing that isn't addressed by the settlement is Google's ability to scan works without offering them for view. Although this limits the knowledge of the contents to machine learning algorithms that are currently fairly crude, this will ultimately change as our computational abilities improve. Wright's descendants think it's better to sort out what it means for a machine to know about the contents of a work now, rather than when it actually becomes a significant issue.

Le Guin's concerns about the deal's shift from opt-in licensing to opt-out deals are echoed by major companies that also offered their take, such as Amazon and AT&T, which filed very similar objections. As potential Google competitors, both of these companies also focused on the antitrust issues involved, objecting to the fact that the revised settlement could still leave Google with extensive control over orphaned works and digitized books in general.

One of the changes to the settlement is that Google will help set book prices by developing an algorithm that simulates what the prices would be under competitive market conditions. In essence, Amazon argues, that's simply having a computer make a decision that would otherwise be made by a human; the net result would still be a fixed price dictated by a single entity, something that antitrust law is intended to prevent. "The claim that this is acceptable or well-intentioned price fixing," Amazon's filing reads, "because it will supposedly mimic the market, does nothing to save the [revised agreement]."

Amazon also argues that some of the changes made in the revised settlement only cover direct-to-consumer sales, and keep exclusive arrangements in place for subscription and institutional services. It also objects to clauses that provide Google protection against future claims, something it objected to the last time around, as well.

The Internet Archive has a similar objection, as its filing has an entire section titled "No Class Settlement Should Authorize Google To Commit Additional Wrongful Acts in the Future." It says that the settlement, by effectively endorsing Google's illegal activity, provides legal sanction to what is now an insurmountable lead over competitors when it comes to content—nobody is going to be able to scan quickly enough to catch up with where Google already is any time soon.

Public Knowledge, an advocacy group, takes a more nuanced view. In general, it finds the spirit of Google's effort—"making knowledge and creative works available to the general public"—in keeping with its mission, and doesn't think that the service itself necessarily violates any laws. But it wants to see the contents of orphaned works equally available to all, rather than made the exclusive domain of Google. To do that, it argues, we need changes in copyright law, not a settlement that is limited to two parties.

At the far end of the spectrum is the Open Book Alliance, which includes libraries, author groups, and some of Google's competitors, like Amazon and Microsoft. Its filing leaves no doubt about how it feels about the revisions under consideration: "The paltry proposals offered by the parties for amending the Settlement—truly, a disdainful response to the vast outpouring of global criticism—change little."

Its filing reiterates many of the complaints mentioned above, but goes well beyond that, accusing Google of starting the book scanning project and structuring the deal simply as a way of maintaining its dominance in the search market. The deal itself is little more than a sham, the OBA argues, since Google has already cut a variety of side deals with the publishers that are parties to the settlement. Once the settlement goes into effect, those will dictate the structure of the digital book market, making the true nature of the changes impossible to discern.

Overall, the revisions to the settlement may have placated a number of parties, but some of the major objections remain: Google will have a significant degree of control over the future market for digitized works, and the settlement will require a change to how copyright is approached in the US, in that license holders will see some rights given to Google unless they act to prevent that. Although this concern is raised by many of Google's competitors, the US Department of Justice also objected to this aspect of the settlement.

The last time around, both parties in the settlement chose to withdraw the agreement in order to deal with the vociferous criticism. Most of that hasn't abated, and it doesn't seem likely to without major structural revisions to the deal, revisions the parties involved appear reluctant to make.

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