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

On November 19, 2009, the district court gave tentative approval to the settlement and set February 18, 2010 as the date of a final fairness hearing. Even if, as expected, the district court approves the settlement, several questions remain.

Will the Copyright Office and the DOJ continue to try to alter the settlement terms? The Copyright Office has long advocated a legislative solution to the problem of orphan works, and thus appears likely to continue to object to the judiciary’s perceived usurpation of functions properly carried out by the legislative and executive branches. The DOJ may be more reluctant to remain critical, since many of the antitrust issues have been blunted, as well as some of the treaty-based objections relating to foreign authors and publishers.

If the district court judge approves the settlement, will it be appealed? Amazon.com is the most likely to bring such an appeal, and many others would join it.

On appeal, would the Second Circuit Court of Appeals or the Supreme Court overturn the settlement as the work of an activist judge? The Supreme Court would likely find the arguments regarding the separation of powers, and the district court’s having exceeded its authority, compelling.

Competitors like Amazon.com are not the only source of challenges to the proposed settlement. Congress and the executive branch would likely prefer to be in the driver’s seat, setting the rules for how copyright will engage the digital age. This story has not been fully written, nor will the fairness hearing on February 18 represent the final chapter.