The U.S. Department of Justice said Thursday that it still has concerns that a deal between Google and book authors and publishers could give the search giant an unfair advantage over potential
competitors.
"Although the United States believes the parties have approached this effort in good faith and the ASA [amended search agreement] is more circumscribed in its sweep than the
original proposed settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business
arrangements that go far beyond the dispute before the Court in this litigation," the DOJ wrote Thursday in a statement of interest filed with U.S. District Court Judge Denny Chin in New York.
The deal, which would allow Google to digitize and sell books through a new registry, was amended
in November after the government expressed concerns about the settlement. But the DOJ said in its court papers that even the amended agreement could be anticompetitive.
"Google would remain the
only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats," the DOJ wrote. "Google also would have the exclusive ability
to exploit unclaimed works (including so-called "orphan works") without risk of liability.
If approved, the settlement would resolve a 5-year-old copyright infringement by the Authors Guild and
the Association of American Publishers against Google stemming from its book digitization project. The $125 million settlement 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.
The potential arrangement has drawn a host of critics, including New
York Law School professor James Grimmelmann, potential competitor Amazon and broadband advocacy groups like Public Knowledge. One of the main concerns is that the deal would leave Google as the only
company that could publish orphan works -- books under copyright whose owners can't be found -- without risking copyright infringement lawsuits. Any other potential publishers could face copyright
liability ranging from $750 to $150,000 per infringement for publishing such books.
The DOJ said in its papers that it "remains committed to working with the parties on the settlement's scope and
content."
Google said Thursday that the settlement will "significantly expand online access to works through Google Books, while giving authors and publishers new ways to distribute their works."
Chin is scheduled to hold a hearing about the settlement on Feb. 18.