In a rebuff to Amazon,
the federal judge presiding over the Google book search case has refused to reconsider his earlier decision granting preliminary approval to a settlement between the search giant and authors and
publishers.
But U.S. District Court Judge Denny Chin in New York said that Amazon, and other opponents, can argue against the proposed deal at a hearing scheduled for Feb. 18.
"In
evaluating a proposed class action settlement agreement for preliminary approval -- particularly one as complicated and multi-faceted as the one at issue here -- a full fairness analysis is neither
feasible nor appropriate," he wrote in an order made public on Wednesday. "Rather, the many nuances of the amended settlement agreement will be considered after the fairness hearing is held."
If approved, the settlement would resolve a copyright infringement lawsuit filed against Google four years ago by the Authors Guild and the Association of American Publishers. The $125 million
agreement calls for Google to fund a new book rights registry, similar to the music industry's ASCAP and BMI, and will allow Google to sell downloads of books at prices that it sets with the registry.
Google, authors and publishers originally proposed a settlement last year, but that deal
was scuttled after the Department of Justice raised concerns. The federal authorities -- as well as
consumer advocates and rival Web companies -- were particularly troubled by a provision that would allow Google to digitize orphan works, or books under copyright whose owner is unknown.
Those terms could give Google an advantage over other potential book sellers, because any rivals who published orphan works would potentially risk a copyright lawsuit, where damages can run as high as
$150,000 per infringement.
Google, authors and publishers recently a revised proposal, but critics have said the tweaks don't address the major concerns about the deal. The amended agreement
calls for a trustee to license the right to publish orphan works to other companies, but only "to the extent permitted by law." Some critics say that restriction could still leave Google as the only
company allowed to digitize and sell such books.
Chin granted the revised settlement preliminary approval on Nov. 19, but that procedural move doesn't mean he will ultimately accept the deal.
Amazon, which opposes the settlement, unsuccessfully argued that Chin should rescind his
preliminary approval and instead order Google, authors and publishers back to the table. "Instead of squandering resources by proceeding with a settlement that faces certain rejection at the final
approval stage, the court should deny preliminary approval, and, if the court so elects, provide the parties with another 30-45 days to renegotiate a settlement," Amazon argued in its legal papers.