GBS: Bloomberg Says Google and the Plaintiffs are Negotiating Modifications with DOJ

Susan Decker & Christopher Stern, Google Said to Be in Talks to Modify Online Book Settlement, Bloomberg (Sept. 16, 2009):

Google Inc. and a group of authors and publishers are talking to the Justice Department about modifying a settlement to make millions of out-of-print books available online, two people familiar with the discussions said.

The discussions are aimed at easing Justice Department concerns the deal would let Google discourage other companies from competing for access to the books online, said one of the people. Both spoke on condition of anonymity.

The official line from all parties is “no comment,” so who’s the leak? Remember, Google and the named plaintiffs kept this secret for years during the initial negotiations, and DoJ has managed to keep an internal lid on its views during the investigation. That would suggest that either a deal announcement is imminent (and more people are being brought into the loop), or that this is a deliberate plant by one side. Google, as a way of defusing the impact of a powerful DoJ filing? DoJ, as a way of showing the public that there are both carrots and sticks involved? DoJ told people in the White House and they’re not as good at keeping secrets? Put your guesses in the comments.

The other fascinating signal here is that there wouldn’t be anything to negotiate over unless DoJ thought there were serious enough issues with the settlement that it would have legal grounds to oppose it and that it would be worth opposing it. I’m also trying to parse the phrase “concerns the deal would let Google discourage other companies from competing for access,” which is either a reporter’s slightly garbled description of the antitrust issues, or an indication that the DoJ is truly focused on the problem of entry barriers.

I think at the least, the Settlement will have to incorporate a consent decree holding the Books Rights Registry to the same levels of anti trust compliance as exists for BMI and ASCAP, including, the obligation to license use of the data base to any customer on the same terms as Google. These are cited and explained in the Amazon Objections Brief filed by David Nimmer.And I trust there will be details on Registry governance establishing its autonomy from the parties, as pressed in the Objections(for Ian Franckenstein,son of author Kay Boyle) I filed, and echoed by several others.