When everyone went home last night, it looked like today’s big story was going to be the one that was breaking in mid-day: That a federal judge in New York had postponed the deadline for authors and publishers to opt out of the controversial settlement between Google, the Association of American Publishers, and the Authors Guild to digitize books after being petitioned by a group of authors and heirs that included the representatives of the estate of John Steinbeck, Philip K. Dick, and others. As this Wall Street Journal report by Jessica E. Vascellaro details, “Judge Denny Chin of the U.S. District Court for the Southern District of New York Tuesday agreed to move back by four months the deadline for authors to opt out of that settlemen,” from May 5 to September 4, 2009, “and also pushed back a hearing over the settlement, which is still subject to court approval, to Oct. 7, 2009.”
But then last night the bombshell hit: The US Justice Department has opened an antitrust investigation into the deal. As a New York Times story by Miguel Helft reports, “Lawyers for the Justice Department have been in conversations in recent weeks with various groups opposed to the settlement, including the Internet Archive and Consumer Watchdog. More recently, Justice Department lawyers notified the parties to the settlement, including Google, and representatives for the Association of American Publishers and the Authors Guild, that they were looking into various antitrust issues related to the far-reaching agreement.”
The probe seems to be focussed on the fact that, as a Reuters wire story reports, the settlement “would allow Google — and only Google — to digitize so-called orphan works” and sell access to them. Orphan works are books that are out of print, but still in copyright. (Reuters is not correct when it indicates that it is unclear who owns copyrights in this situation — often, ownership is clear, as we here at Melville House can attest about several books we’ve brought back into print that are available now through Google Books.)
“There are legitimate antitrust issues related to Google’s ability to solely commercialize this content,” commented Peter Brantley of the Internet Archive. IA also digitizes books, and Brantley “said his organization had ‘multiple conversations’ with the Justice Department about the Google plan,” according to Reuters.
Brantley says he hopes the aforementioned Judge Denny Chin will throw out the settlement. “We would like the court to say: ‘This is fine theoretically, but these orphan books, they don’t have anyone to speak for them, so let’s take them out of the agreement,’” he says.
Which is, in fact, what Brantley and IA asked the judge to do earlier this week — and which the judge refused to do, as per this MobyLives story from just yesterday.
Meanwhile, as the Times report notes, this investigation “will not be the first time that Google has found itself in the sights of federal regulators. Last year, Google abandoned a prominent advertising partnership with Yahoo after the department threatened to go to court to block the deal.”