Consumer Watchdog barks, bites Google's ankle

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 amended settlement does not do enough to protect reader privacy:      "The current amendment merely restricts what data could be shared with      the Registry, but otherwise remains silent about whether, and to what      extent, the public's reading preferences could be shared with other      organizations such as news outlets or governmental authorities acting      without a search warrant.  And while Google has publicly asserted that      its current privacy policy will apply to its book activities, that      policy is voluntary by nature and subject to change at Google's whim."     
• 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."