• by Wendy Davis  @wendyndavis, April 3, 2009

A federal judge will allow New York Law School to argue that a proposed settlement of a class-action lawsuit about Google Book Search should be delayed pending further review.

The school's Institute for Information Law & Policy intends to argue that federal antitrust authorities should weigh in on the case before the court decides whether to approve the settlement. U.S. District Court Judge Denny Chin ruled Wednesday that the policy center can file a friend-of-the-court brief.

If Chin ultimately approves the settlement, it would resolve a four-year lawsuit filed against Google by the Authors Guild and the Association of American Publishers. They alleged that Google infringed copyright by digitizing books. The agreement, filed with the court in October, calls for Google to fund a new book rights registry and allows the company to digitize books and sell downloads at prices it sets with the registry.

James Grimmelmann, the law school associate professor behind the initiative, said his main concern about the settlement stems from "orphan works" -- material under copyright, but whose owners can't be found.

The agreement would allow Google to digitize and sell such works -- which offers both benefits and disadvantages, Grimmelmann said.

Currently, anyone who reprints orphan works could face copyright infringement liability -- which has resulted in many books remaining out of print (although some orphan works can be found at used bookstores and libraries).

"The settlement is an improvement in the status quo because these books are unavailable to the public and not making money for anyone," Grimmelmann said. But the downside is that Google would become the sole company able to publish such books without facing potential copyright lawsuits -- which could raise antitrust issues.

"It's not that the settlement is broken," Grimmelmann said. "It just needs a few more safeguards attached."

A Google spokesperson said the settlement would expand access to millions of books. "From the beginning, we've envisioned a future where students, researchers, and book lovers could all discover and access the world's books online. We believe that this agreement represents a giant step toward realizing that vision," the spokesperson added.

Google foe Microsoft has agreed to contribute $50,000 to New York Law School to help fund a host of projects related to the book search settlement, including the friend-of-the-court brief, a symposium, and three white papers.

Grimmelmann said Microsoft will have no influence over the project, and his written proposal seeking funding from the software giant also spelled out that the work will be independent. "If Microsoft was to come back to us and try to put any pressure on how this comes out, we'd say, 'That's not how this works,'" he said.