DOJ Still Has Problems With the Google Book Settlement, But Wants to Resolve Them

The U.S. Department of Justice has weighed in again on the Google Book Settlement.  According to the press release, there are still antitrust issues that remain, though the Department remains committed to working with the parties to resolve those issues.  The major issues that remain include the use of the class action to resolve forward looking business arrangements, a point made by many critics of the settlement, and exclusivity in some areas that would accrue to Google for some sales of some categories of items.

From the press release:

In today’s filing, the department recognized that the parties made substantial progress on a number of these issues. For example, the proposed amended settlement agreement eliminates certain open-ended provisions that would have allowed Google to engage in certain unspecified future uses, appoints a fiduciary to protect rightsholders of unclaimed works, reduces the number of foreign works in the settlement class, and eliminates the most-favored nation provision that would have guaranteed Google optimal license terms into the future. However, the changes do not fully resolve the United States’ concerns. The department also said that the amended settlement agreement still confers significant and possibly anticompetitive advantages on Google as a single entity, thereby enabling the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats.

The department continues to believe that a properly structured settlement agreement in this case offers the potential for important societal benefits. The department stated that it is committed to continuing to work with the parties and other stakeholders to help develop solutions through which copyright holders could allow for digital use of their works by Google and others, whether through legislative or market-based activities.

The full brief is here.  More to come on this.  [MG]