14 DAY TRIAL // The whole Google Books legal affair doesn't sound that glamorous and certainly not that important, but the outcome of the lawsuit and the fundamental changes it is likely to set in motion make it one of the most important issues involving the web today. The settlement between Google, authors and publishers criticized by competitors and recently by the US Department of Justice is set to go before the judge in a final hearing in less than a week, on February 18, and Google has now filed one last defense arguing against some of the DoJ's gripes.
Google believes that the revised settlement currently under review complies with the law despite what the DoJ claims and that the deal is beneficial for all parties involved. The brief filed yesterday mostly goes through the arguments Google iterated before, but also makes a case to counter the latest wave of critics.
The company says that, with just one important exception, the revised settlement addresses all of the problems the DoJ had with the deal when it first made its opinion on the matter known last summer. That exception is the recommendation that authors opt into the project rather than their works be added by default and removed only if they explicitly wish to. Google says the provision is crucial to the project and changing it "would eviscerate the purposes of the ASA (amended settlement agreement)."
The Department of Justice did indeed acknowledge the progress made in the revised settlement and mostly focused on the larger issue of using a class-action lawsuit to effectively legislate the matter of so-called orphaned books, out-of-print copyrighted books for which the author couldn't be determined. The DoJ claims that this would set a treacherous precedent. Google counters by saying that the mechanism was used before in settlements between businesses.
“Every settlement is a deal, in which each side gains something and gives up something, and that is just as true in this case,” the brief (PDF) read. “Plaintiffs are giving up their right to sue to challenge a range of potential future Google activities, in return for compensation and other arrangements beneficial to them. In return, Google is giving up defenses it advanced in good faith and is providing substantial tangible benefits to Rightsholders that they might never have received if Google had prevailed.”