• by Wendy Davis , Staff Writer @wendyndavis, February 3, 2010

Some critics aren't any happier with the revised deal in the Google Book Search case than they were with the original. In fact, at least one prominent academic has come to view the proposed resolution more negatively as more time has gone by.

James Grimmelmann, a professor at the New York Law School, initially expressed ambivalence about the deal, which allows Google to digitize and sell "orphan works" -- books under copyright whose owners can't be found.

On the plus side, he said, the settlement would make available a trove of "orphan works" that are now out of print. On the other hand, that provision could leave Google as the only digital publisher in a position to publish those books, because all potential rivals would still face potential copyright infringement liability for doing so.

Now, more than one year after the deal was announced -- and two months after it was revised to address concerns of the Department of Justice -- Grimmelmann has become decidedly more negative about it in comments filed with the court. "In September, our filing recommended further consultation and improvements to the class action process, in the hopes that sufficient oversight could keep it accountable and operating in the public interest," Grimmelmann said in a recent blog post. "The letter filed today concludes that the way the settlement uses a class action is not salvageable."

The insurmountable hurdle, he says, is that the deal "tries to solve a legislative problem through the judicial system."

He adds: "While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way."

Grimmelmann isn't the only one complaining. The roster of opponents includes Amazon, AT&T, the Center for Democracy & Technology, Public Knowledge, various state attorneys general and UC Berkeley's Pamela Samuelson (who authored a letter criticizing the deal that was signed by a host of academics).

Of course, some groups support the deal, arguing that it will improve access to orphan works. That may be, but in the long run the cost of that access might well be a Google monopoly -- and that in itself is good reason for the court to be very wary of this settlement.