The DoJ, late on Friday, produced a brief (“A Statement of Interest of the United States”) which stopped the Google Books Search Settlement in its tracks. Pam Samuelson thinks “This is the most significant development since the settlement itself was announced.” (HuffPo). She also predicts “Now that the DOJ has weighed in so forcefully, however, it would be astonishing if Judge Chin approved the settlement in its current form.”
I guess that Google, The Authors Guild and the APA take the same view because they have now asked the Judge to delay matters whilst they re-negotiate. The judge will surely agree to the delay, but the renegotiation is not going to be easy. The DoJ’s brief can be read in two ways. Pam Samuelson reads it as pretty much a rejection. That is the way it struck me. But there are also elements of the rhetoric which suggest that the DoJ (speaking for “the United States”) would like to see something positive emerge from the brouhaha. There are sentences like this “Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost.” (see Page 4) Michael Cairns has picked up on this at Personanondata, and he reckons that this is an invitation to the parties to join with the DoJ and amend the settlement forthwith “this agreement will be approved with many of the changes DoJ has specified” (Deal Done).
The trouble is that the three principal difficulties that the DoJ identifies are profound and go to the heart of the deal. Are the members of the class adequately identified and their interests adequately represented? Are there fundamental difficulties in relation to copyright which is at the core of the dispute? Is there a looming anti-trust problem? The DoJ has not prescribed a solution to any of these tricky issues and if it were to prescribe a solution it would set the bar very high. I dont think they will be in the smoke-filled room with the Google lawyers and the Authors’ Guild hammering out royalty rates, distributor discounts, and pricing algorithms.
One doubts that the Google lawyers are looking forward to the next few months. Few months? This is beginning to look like an interminable process. How could it be terminated? Since we think that the DoJ is right to like features of the Settlement we wonder whether the Google lawyers can craft a simple and interim agreement which gives them and all parties something in the short-term, whilst the long term negotiations on the big Settlement proceed.
An intriguing possible interim solution would be one that separated the issue of search from the issue of full text distribution. A partial service which enabled full text indexing and snippet search results of the kind envisaged in the original Google Print project. Ideally, Google should propose that this corpus of material would also be open to any other search engine (ie Google does not leverage its first mover status — though inevitably it still has that!). Such an Interim Settlement should permit anybody to deliver search services, up to and including limited display snippets over ‘books’ as defined in the draft Settlement.
This specific interim compromise may not fly, but one hopes that the parties can identify some provisional elements of the project which can soon see the light of day. Holding everything up whilst the legal complications ramify is an unattractive prospect.