Lawyers representing Consumer Watchdog are in court today in an attempt to persuade Judge Deny Chinn to deny the revised Google Books settlement.
The main thrust of their argument is that the revised settlement is anticompetitive and flies in the face of US and international law. The judge won't make his final ruling today.
The head lawyer representing Consumer Watch is Daniel Fetterman of law firm Kasowitz, Benson. He said the amendments to the Google Book settlement are insufficient. "If approved, this settlement would improperly destroy potentially millions of absent authors exclusive copyrights and would give Google an unfair monopoly that is not in the public interest."
Consumer Watchdog is not the only interested party in this case. The US Justice Department also opposes the proposed settlement.
Consumer Watchdog agrees with the Justice Department that the amended settlement is a bridge too far. John Simpson, from CW, said: "Google claims it is building a digital library to benefit the public. In fact this deal, negotiated in secret, simply furthers the relatively narrow agenda of Google, The Authors Guild and the Association of American Publishers."
He said the settlement would give unfair control to one company.
Here are the arguments from Consumer Watchdog in full:
- The settlement continues to abuse the class action process and is not fair reasonable or adequate: "This revised plan is still nothing more than a private business arrangement, masquerading as a settlement, that would steal from unsuspecting absent class members while benefiting Google. Notably, it is only the Rightsholders' share of the proceeds that will be donated to charity, and Google would still make a profit from these sales."
- The amended settlement continues to give Google an unlawful and anti-competitive monopoly: "In effect, the agreement temporarily suspends the copyright laws for Google, giving it the rights to copy, distribute, and publicly display millions of copyrighted books--including 'orphan' works for which Rightsholders cannot be easily located. By utilizing the class action settlement mechanism to obtain these rights, Google avoids the transaction costs that any potential competitor would have to incur."
- The proposed settlement is an unconstitutional attempt to revise the rights and remedies of U.S. Copyright law: " In essence, the parties ask the Court to strip copyright protection from millions of books, putting the onus back on the copyright holders to step forward and reclaim their works. But this Court may not rewrite copyright law. Only Congress has 'the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests' that must be balanced when amending the Copyright Act."
- The proposed settlement continues to conflict with international law: "One of the most significant revisions to the proposed settlement is that many international Authors and Publishers are now excluded from this settlement through the revised definition of 'Book.' But Rightsholders from Australia, Canada, and the United Kingdom--all countries that are signatories to the Berne Convention--are still included. And authors from these countries would be subjected to the identical, and impermissible, 'formalities' that were found in the original settlement."
- The public deserves a ruling on the question of fair use: "The Plaintiffs contend that Google's copying and displaying copyrighted Books violates 17 U.S.C. section 106, while Google argues that such use is permitted under the fair-use doctrine. If, as Google claims, its search-engine activities are protected by fair use, a ruling on this matter would not only resolve the parties' conflict, but would (if resolved in Google's favor) allow the creation of a competitive book-search market, not one controlled solely by Google, who is already the market leader in on-line search engines."