At a meeting with reporters* in New York Monday, Google Chief Executive Eric Schmidt acknowledged that the parties may have to exclude orphan works from the settlement to get it approved.
The parties are also contemplating other modifications, including changes to the structure of the registry, the groups of authors and publishers that are charged with overseeing the settlement, setting some prices, and sharing revenue with copyright owners, say people familiar with the matter.
The federal judge who is responsible for reviewing the Google book settlement that would create a vast digital library has set Nov. 9 as the date by which Google and its partners must submit a revised settlement for the court’s preliminary approval.
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At a short hearing Wednesday morning in Federal District Court in Manhattan, Judge Denny Chin confirmed that the current settlement was no longer on the table.
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Paul Aiken, executive director of the Authors Guild, said in an interview that the changes would be minor. “We would not be able to do it by Nov. 9” if they were more substantial, he said. “The core agreement is going to stay the same. We are amending limited portions of the settlement agreement.”
"We appreciate the Court's guidance and look forward to moving ahead. As we've said in the past and in the hearing today, we are considering a limited number of amendments to the agreement," a Google spokeswoman said via e-mail on Wednesday.
"If approved by the Court, the settlement stands to unlock access to millions of books in the U.S. while giving authors and publishers new ways to distribute their work," she added.
An attorney speaking for the US Authors Guild and the Association of American Publishers said the revised deal was on track.
"The parties have worked on a daily basis, assiduously," Michael Boni said, and were "working around the clock."
"We have gone a lone [sic] way to identify and negotiate amendments to the settlement," he said.
Boni said the November 9 target for a preliminary hearing on the settlement was realistic and that "in the best case scenario we would target late December, early January for the final fairness hearing."
Daralyn Durie, representing Google, also said the deal was within reach. "The parties' expectation is that we will be able to present an amended settlement agreement," she said
“Based on the court hearing today, one thing is clear — whatever revised settlement Google and its partners unveil on November 9th must be subject to full review and scrutiny by the vast array of stakeholders – authors, academics, consumer advocates, privacy groups, libraries, and others – who have spoken out.
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“It’s also clear that the settlement partners have zero interest in creating an open process that takes input from critical stakeholders. Instead, Google and its partners are serving their private business interests and ignoring the public interest. They came to the courtroom without a single concrete recommendation of how they would address any of the problems with the original settlement. Instead, they proposed more of the same — secret, back room negotiations – rather than an open, transparent and collaborative process.”
Chin today endorsed a proposal that would limit the time for opponents of the new pact to file court papers opposing it. He said opponents of the accord should voice comments only about new terms, not provisions that remain the same.
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“Otherwise, it will be many, many, many months” before the case is resolved, he said.
Chin, who was nominated yesterday by President Barack Obama for a seat on the U.S. Court of Appeals, said he wanted to create a system by which parties objecting to the settlement may electronically file court papers, rather than hand-delivering them as previously done.
“In this case, of all cases, there should be an electronic way of handling this,” he said to laughter in the packed lower Manhattan courtroom.
Judge Chin asked about ways to make the submission process easier. The court has a single scanner, and spent four straight days scanning the hard-copy submissions. The Clerk’s office, however, is concerned about asking non-lawyers to use the electronic filing system. Judge Chin asked about the possibility of an email address for electronic submission of comments and objections, possibly through the settlement administration site. Boni said that the settlement agreement requires that objections be served on the parties, so they would be happy to take on the scanning burden.
William F. Cavanaugh, a deputy assistant attorney general, told the judge that the government has been in continuing discussions with the parties.
However, he said the government was not yet aware of what the final deal will look like.
He said he expected "meetings in the near term to go over whatever their proposal is."
Cavanaugh asked that the judge give the government a week to 10 days after any deadline for objections to be submitted for the Justice Department to prepare its analysis of the new deal.
At one point, [Judge] Chin asked what will happen if negotiations break down and no deal is reached.
Google lawyer Daralyn Durie reassured the judge, saying: "The parties' expectation is we will be able to reach agreement."
"I like the target date of early November. Targeting the changes is the right way to do it," Chin said during a 15-minute long conference in court with lawyers for the parties and the U.S. Department of Justice.
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Google CEO Eric Schmidt has said the Justice Department criticisms seem reasonable and the search engine giant is amenable to a few minor changes.
Though it’s not yet clear what form the revised settlement might take or what adjusted terms are being discussed, Google and the authors and publishers it has allied with it have quite a few critics to appease, including academics, librarians, privacy advocates, would-be rivals and the French and German governments.
A hearing on whether to approve that settlement was originally scheduled for Wednesday, but last month the publisher and author groups asked for more time to work out a new deal that satisfies the Justice Department's concerns.
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