Victoria Strauss -- It's Official: DOJ Investigates Google Book Settlement

Yesterday, the US Justice Department confirmed that it is opening a formal investigation into the Google Book Settlement.

A quick recap: Several years ago, Google entered into agreements with a number of libraries to scan the books in their collections. The books were then listed online via Google Books, along with publishing info and, for books still in copyright, limited "snippets" of text (for public domain books, the entire text was available). Claiming that the scanning was fair use, Google argued that it didn't need to seek copyright holders' permission first. Authors disagreed, and in 2005, a group of publishers and the Authors Guild filed suit to stop the scanning.

Last October, the parties in the suit reached a settlement--a mind-numbingly complicated arrangement that, depending on whom you ask, is either the first step toward a universal world library or the next step in Google's quest for world domination. Much like desperately ill patients forced to research their own health care, authors were faced with the prospect of taking a crash course in Googlenomics in order to decide whether to opt in to the settlement--in which case they'd receive a small amount of money for Google's use of their work, but potentially give up a good deal of control of that use--or opt out, in which case they would get no money and potentially lose all control.

Originally, the deadline to opt in or out was May 5, 2009. But, responding to a petition from a group of authors, Judge Denny Chin of the U.S. District Court for the Southern District of New York extended the deadline to September 4. Along with increasingly vocal opposition to the settlement from a variety of groups, the delay seems to have spurred the interest of the Justice Department. Over the past couple of months, there've been reports that the DOJ has been contacting Google and publishers with questions about the settlement.

Now it's official. Judge Chin, who issued the deadline extension, has released the letter he received from the DOJ, along with his order that the government present its findings by September 18, 2009 (ahead of the settlement's October 7 fairness hearing). The letter begins:

The United States writes to inform the Court that it has opened an antitrust investigation into the proposed agreement between Google and representatives of publishers and authors which forms the basis of a proposed settlement of a pending class action in The Authors Guild Inc. et al v. Google Inc., Civil No. 1:05-CV-8136. The United States has reviewed public comments expressing concern that aspects of the settlement may violate the Sherman Act.

There's no way to know what the investigation will reveal, or whether the settlement will stand, change, or be struck down as a result of the fairness hearing. But whatever happens, the deadline for authors to opt in or out falls before both the DOJ deadline and the fairness hearing--which means that authors must decide on the basis of the current settlement terms. Authors absolutely owe it to themselves, therefore, to be as informed as possible, so they can make the best possible decision--whatever that decision may be.

If you're tempted to do nothing (which I suspect many authors will be, given the complexity of the settlement and the issues surrounding)--resist. As in the health care metaphor I used above, doing nothing is the worst of all possible worlds, since, if the settlement does stand, you will gain neither the possible benefits of participation (which include the right to tell Google to remove your books from its database), nor, if you decide to opt out, the moral satisfaction of giving Google the finger.

To assist with the decision process, I'm re-posting some of the resources I compiled in an earlier discussion of the settlement, along with a few others I've found since. These are resources that I personally found helpful; I hope you will too.

- The Google Book Settlement website.

- What the Google Book Settlement Means for Authors and Publishers--An admirably clear and concise (given the complexity of the settlement) summary of the settlement's key points from Joy R. Butler. I guarantee you'll find something here you didn't know.

- From the Ashley Grayson Literary Agency, a guide to your options under the settlement and how (and whether) to exercise them.

- From the Dear Author blog, a roundup of info on the settlement plus links to more articles.

- The Google Book Search Settlement: Ends, Means, and the Future of Books: A thoughtful summary of issues of concern--including the huge control over orphan works Google could gain from the settlement--from James Grimmelmann of the American Constitution Society.

- Law professor Pamela Samuelson discusses the orphan works issue, as well as the potential monopoly the settlement may give Google, in The Dead Souls of the Google Book Search Settlement.

- More on the potential Google monopoly from Cory Doctorow at BoingBoing. The comments are interesting as well.

- From the Books and Corsets blog, a summary of a Columbia Law School-sponsored symposium on the settlement. Worth reading, because it highlights some issues that other sources don't seem to have picked up on.

- Mike Shatzkin has questions about the distribution of revenues generated by the settlement.

- An article in Time magazine details librarians' concerns about the settlement.

- The other side, from (respectively) readers', researchers', and publishers' perspectives: a defense of the settlement from columnist Mark Gimein, another from John Timmer at Ars Technica, and another from Tom Allen of the Association of American Publishers.

- And finally, for the technophiles among us, NPR reveals details of Google's patented scanning process.