Google Book Project Tries to Placate the Critics: Will It Be Enough?

Most of these criticisms were also voiced in a brief filed by David Nimmer on behalf of Amazon.com, Inc. In the brief, Amazon says:

Amazon is a member of the class by virtue of its ownership of a [U.S.] copyright... Amazon … has engaged in a book scanning project very similar to Google’s, with one major distinction: As to books still subject to copyright protection, Amazon has only scanned those for which it could obtain permission to do so from the copyright holder. Amazon’s scanning project has to date resulted in the lawful scanning of over 1 million English-language works and 3 million books in total.

The settlement proposed by the parties to this case should not be approved. It is unfair to authors, publishers, and others whose works would be the subject of a compulsory license for the life of the copyright …. It is anticompetitive … because it provides Google an effective monopoly in the scanning and exploitation of millions of [orphan] works... It also creates a cartel of authors and publishers—the Books Rights Registry—operating with virtually no restrictions on its actions …. Finally, the proposed settlement improperly seeks to stretch the boundary of this Court’s power beyond its lawful limits, using the class action mechanism … to create a massive and complex business arrangement of perpetual duration….

Google, the Authors Guild, the publishers and the DOJ had meanwhile been discussing amendments to the Original Settlement that might address some of these criticisms. In addition, Google engaged trade associations representing authors and publishers in Canada, the UK and Australia. On November 13, 2009, the parties filed an Amended Settlement Agreement that modified the Original Settlement in several ways, including:

* Foreign works would be excluded, other than works published in Canada, the UK or Australia;
* The Registry would include representatives of authors and publishers from those countries, as well as a representative charged with protecting the interests of authors of orphan works;
* Unclaimed funds attributable to commercialization of orphan works would not be distributed to other authors. Up to 25% of the money could be spent seeking to identify the authors. If they had not been found within 10 years, the funds would be donated to literacy-based charities;
* The commercialization opportunities would not be open-ended, but would still include downloading of entire books, print-on-demand, and consumer subscription;
* Google would be able to discount prices without consulting first with the Registry (a concern of the DOJ, which felt that giving the Registry a voice in setting prices might amount to price-fixing among competitors);
* Copyright holders could instruct Google to use different licensing models, and to give away their books for free; and
* Google would be required to make the database available to third-party resellers, such as Amazon and allow them to keep the majority of the profit originally allocated to Google.