Google, the Authors Guild and the Association of American Publishers said in a filing Tuesday with the U.S. District Court for the Southern District of New York that they intend to amend their settlement agreement, which could hand Google considerable influence over the digital books market.
Days after the U.S. Justice Department issued a stinging criticism of Google Inc.'s proposed legal settlement with authors and publishers, the Internet company and its courtroom rivals have moved to postpone a related fairness hearing scheduled for early October.
"It is because the parties wish to work with the DOJ to the fullest extent possible that they have engaged, and continue to engage, in negotiations," Google and the plaintiffs said in their court filing Tuesday.
"Because the parties, after consultation with the DOJ, have determined that the settlement agreement that was approved preliminarily in November 2008 will be amended, plaintiffs respectfully submit that the fairness hearing should not be held, as scheduled, on October 7."
Instead, the plaintiffs and Google request a "status conference" to be held Nov. 6.
This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition. It’s also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead.
Note: An "official statement" from the Open Book Alliance is posted below.
Gabriel Stricker, a Google spokesman, said in an e-mailed statement that the company won’t be filing its own request for a postponement. “We are considering the points raised by the Department of Justice and others, and we look forward to addressing them as the court proceedings continue,” Stricker said.
When the Department of Justice made it clear last Friday that it could not support the settlement as written--which would give Google unique rights to scan out-of-print books still protected by copyright law--it said the parties were in talks to amend the settlement. In a joint brief, lawyers the Authors Guild, the Association of American Publishers, and others asked Judge Denny Chin to delay a hearing on whether to approve the settlement while the parties work out the new terms of the settlement with the DOJ.
For its part, Google agreed with the decision to delay the hearing. "We are considering the points raised by the Department of Justice and others, and we look forward to addressing them as the court proceedings continue," it said in a statement.
Lawyers for the authors and publishers said in court papers Tuesday that, "as the United States government put it, no one wants `the opportunity or momentum to be lost.'"
Now the question is, how extensive will the rewrite be? How strongly will the new settlement support universal access to scanned works, open formats, equal treatment of authors? Will Google still have special status with regard to orphan works? Will the new settlement address other concerns like privacy at all?
Until now, Google, the Authors Guild and the AAP have maintained that the proposed settlement will be beneficial to authors, publishers and readers by making it easier to find, distribute and purchase books, especially those that are out of print.
However, critics have raised several objections, including what they perceive as excessive control by Google over prices. They have also expressed concern over "orphan works," books that are under copyright but whose owners can't be found because the author has died or the publishing house disappeared.
"We hope that Google and its partners learn the right lessons from this fiasco and start over in an open and transparent manner. They must create a robust process that includes input from all stakeholders, including authors, libraries, independent publishers, consumer advocates, state Attorneys General, the Justice Department, and Congress. This opportunity cannot turn into another negotiation behind closed doors.
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