For the first time since its preliminary approval in November 2008,
the Google Book Search settlement is looking less like a done deal. On
April 28, New York federal judge Denny Chin granted a four-month
extension, delaying the initial May 5 deadline to opt out or object to
the Google settlement until September 4, with a fairness hearing now
set for October 7. The ruling leaves all other dates in place, at least
for now, but raises questions about the deal’s prospects for final
approval.
Gail Knight Steinbeck, one of the driving forces behind the
extension, said the delay would give everyone time to “really sink our
teeth into what this agreement will mean.” She said that four months
should be sufficient to consider whether the deal is more acceptable,
to clarify for some stakeholders whether they should opt in or out—or,
perhaps, to change or object to the deal.
Some suggested that the extension was the beginning of a major
challenge to stop—or at least substantially alter—the existing
settlement. “The extension is a big victory for those who oppose the
Google book settlement,” John M. Simpson, an advocate for Consumer
Watchdog, said. “It’s a clear recognition by the judge that there are
problems with the proposed deal,” Simpson asserted, adding that the
delay gives the Justice Department “more time to consider the antitrust
issues that we and others have raised and discussed with them.” The
Department of Justice has contacted the parties involved in the
settlement, but has not begun a formal investigation.
Authors Guild executive director Paul Aiken shrugged off the
four-month extension. “We’d hoped for a shorter extension of time,
since we’re eager to get on to the next phase of the process,” he said.
“It’s not surprising, however. Nothing about this settlement has
happened quickly.” In a court filing, the settlement parties rejected
the idea that there was any problem with the settlement, but had
offered a 60-day delay. Google attorney Alexander Macgillivray wrote on
the company blog that Google offered the extra time so “rightsholders
everywhere have enough time to think about [the settlement] and make
sure it’s right for them.” Work on developing the Book Rights Registry,
which will clear rights and pay authors and rights holders, is
continuing.
One observer close to the settlement, however, commenting on
background, suggested that the 60-day offer hinted at looming trouble,
comparing the situation to a congressional vote—if you believe you have
enough votes to get a bill passed in Congress, the observer noted, you
call a vote and get on with it. To agree to an extension suggests the
parties believed there was at least some chance of the settlement’s
rejection.
James Grimmelman, a New York Law School professor who has written
extensively on the settlement, agreed that the extension was not
necessarily good news for the deal. “Since the more you look at the
settlement, the more worrying things you see, I’d agree that a delay
increases the chances that it would be rejected or modified,”
Grimmelman said.
In recent weeks, as the approval process moved toward its initial
May 5 deadline, resistance to the deal had stiffened. Critics,
including the Internet Archive and major library groups, continued to
raise questions about everything from antitrust concerns to the
settlement’s treatment of orphan works. Even some publishers have
expressed uneasiness with the deal. The head of a midsize house said he
hoped the agreement is altered to make it easier for a possible
competitor to Google to emerge. The Internet Archive’s Peter Brantley
told PW the IA was interested in working with partners to
“more squarely identify our concerns and articulate them to a broader
audience.”
Although it remains to be seen what the next four months will bring,
the deal, once on a very fast track, has been slowed considerably—and
could be slowed even further. As increasing numbers of stakeholders
scrutinize the deal in the coming weeks, the agreement could change,
and if the deal is altered in any significant way, that could mean
another round of notices would be required, and yet another delay on
the road to final approval.
