ALA Issues Guide to Amended Google Agreement
Department of Justice remains key player as settlement moves forward
Norman Oder -- Library Journal, 11/23/2009
- Covers changes from a library perspective
- No immunity from antitrust issues
- Fairness hearing Feb. 18, 2010
The American Library Association (ALA), the Association of Research Libraries (ARL), and the Association of College and Research Libraries (ACRL) have released "A Guide for the Perplexed Part III: The Amended Settlement Agreement."
Written by consultant Jonathan Band, the 11-page guide describes the major changes in the amended settlement agreement (ASA) reached by Google and plaintiffs the Authors Guild and the Association of American Publishers, with emphasis on those changes relevant to libraries.
January 28, 2010 is the deadline for class members to opt out of the ASA or to file objections. February 4, 2010 is the deadline for the Department of Justice (DOJ) to file its comments. The Court will hold the fairness hearing on February 18, 2010.
Foreign works
Following up on initial reports about the settlement, Band points out that "as much as 50% of the titles in the research libraries partnering with Google are not in English.... The ASA, therefore, likely applies to half as many books as the original settlement. The foreign (non- Anglo) books will not be available for the full-text display services under the ASA such as the institutional subscription, consumer purchase, and the free public access."
However, he notes that Google does plan to continue scanning foreign books for snippet display, which could lead to further litigation—as well as negotiation with foreign copyright holders.
Issues of competition
As has been previously noted, the amended agreement does not change Google's privileged position regarding unclaimed works—so-called "orphan works" that remain in copyright but whose rightsholders cannot be found.
However, there are changes on some other consumer issues. Band notes that the ASA does remove any time limits on Google’s right to discount the list price of books for consumer purchase.
Antitrust issue
Perhaps most importantly, Band points out that, should the settlement be approved, the parties would not be immunized from an antitrust suit. "The new proposed Final Judgment and Order of Dismissal... provides that the order does not provide antitrust immunity to the parties or any other person," he writes.
That means the Department of Justice need not oppose the amended agreement but could assess how the pricing issues work in practice.
