Sunday, November 15, 2009

DOJ Response Will Determine Fate of Google Settlement 2.0

Circle Thursday, February 4, 2010, on your calendar. Under the approval schedule proposed by the parties of the revised Google Books settlement, that is the date when the Justice Department will file its response to Settlement 2.0, which was submitted last Friday to Judge Denny Chin.

Make no mistake. After authors, librarians, privacy advocates, and Google's would-be competitors screamed bloody murder, it was the 11th hour "Statement of Interest" by the government, combined with the complaints of foreign governments, that forced the parties to punt at the October 7 fairness hearing.

The new version of Google's project, somewhat less audacious in scope, now does not encompass "orphan works" the world over, but only English-language works published in the U.S., Canada, Britain, and Australia. There are also numerous changes on the margins. However, the default of exploiting the future rights of absent class members who do not opt out is still there.

What we don’t know, of course, is what has happened behind the scenes. The process here is a kind of legislation-by-litigation: the de facto change in copyright law that it contemplates, under our system, should be deliberated by Congress. During the recent hearing by the Senate Judiciary Committee, Congresswoman Zoe Lofgren – who represents the California district in which Google is headquartered, and whose campaigns receive financial backing from Google executives – gave us the extraordinary spectacle of a legislator deferring to other branches of government on matters of legislative purview: “At this point we don’t have a role to play.... [The settlement represents] the private sector achieving what we failed to achieve.”

To extend that image, the talks between the settlement parties and the Justice Department Antitrust Division are a bad analogy to legislative mark-up sessions, or perhaps conference committees resolving different versions of a bill passed by both the Senate and the House of Representatives.

As analyst James Grimmelman alertly noted, Settlement 2.0 does not go as far as the DOJ brief tried to nudge it in fundamental areas. But did the Justice lawyers have an advance peek at the new version, and did they, with bureaucratic winks and nods, give the parties reason to believe that the government would hold further fire?

While other questions of abstract law remain, that is the question.of realpolitik. The answer, most likely, will spell whether the project gets court approval in its present form.


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