Plaintiffs ask for more time in Google book search case

The Authors Guild and the Association of American Publishers (AAP) want more time to rework their proposed agreement with Google to settle a lawsuit over the search company's book search service.

The Authors Guild and the AAP have requested that Judge Denny Chin reschedule a key "final fairness" hearing, set for Oct. 7 at the U.S. District Court for the Southern District of New York to hear arguments for and against the settlement deal.

In a filing with the court on Tuesday, the Authors Guild and the AAP said they want to amend the agreement but that they need more time. They are asking that a status hearing be held on Nov. 6 to inform the judge of their progress and consider a date for the final fairness hearing.

Their request was prompted primarily by a set of objections to the agreement that the U.S. Department of Justice (DOJ) outlined on Friday. "This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations," the DOJ said in its 32-page Statement of Interest to Judge Chin.

The settlement should be modified so that it complies with U.S. copyright and antitrust laws, and to satisfy the requirements of Federal Rule of Civil Procedure 23, which sets parameters for approving class-action lawsuit settlements, the DOJ said.

"It is because the parties wish to work with the DOJ to the fullest extent possible that they have engaged, and plan to continue to engage, in negotiations in an effort to address and resolve the concerns expressed in the U.S. Statement of Interest," Tuesday's filing from the Authors Guild and the AAP reads. "The parties are committed to rapidly advancing the discussions with the DOJ. Nevertheless, it is clear that the complex issues raised in the U.S. Statement of Interest preclude submission of an amended settlement agreement by October 7."

Asked for comment, Google said on Tuesday: "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. If approved by the court, this settlement stands to unlock access to millions of books in the U.S. while giving authors and publishers new ways to distribute their work."

Despite its criticisms, the DOJ said a settlement of the case would benefit the public because it would make millions of hard-to-find books easily accessible in digital form.

In 2005, book authors and the Authors Guild filed a class-action lawsuit, while five large publishers filed a separate lawsuit as representatives of the Association of American Publishers' membership.

The plaintiffs sued after Google began scanning and indexing hundreds of thousands of books from the libraries of major universities without always getting permission from the copyright owners.

Google stores the text of the books on its servers and makes the text searchable through its book search engine. It says the practice is protected by the fair use principle because it shows only snippets of text for in-copyright books it has scanned without permission.

Google and the plaintiffs drafted their proposed settlement after two years of negotiations. It calls for Google to pay US$125 million and in exchange gives the search company rights to display longer chunks of these in-copyright books, not just snippets.

The proposed agreement would let people buy online access to these books, while letting institutions buy subscriptions to books and make them available to their constituents.

Google and the plaintiffs also proposed setting up a royalty system to compensate authors and publishers for access to their works via the creation of the Book Rights Registry.

They envision the registry as an independent, nonprofit entity that would distribute payments to copyright holders earned through online access to their works. Institutional subscriptions, book sales and ad-revenue sharing would generate revenue.

The Registry would have a board of directors made up of an equal number of author and publisher representatives. It would also locate and register copyright owners, who in turn have the option to request to be included in or excluded from the project.

A big portion of Google's $125 million payment would fund the Registry. The rest would be used to settle existing claims by authors and publishers and to cover legal fees.

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.

Copyright © 2009 IDG Communications, Inc.

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