Google dismisses Justice Department objections

Taking a newly confrontational stance, Google has decided not to negotiate over the latest objections from the U.S. Justice Department about its plans to create an immense digital library of out-of-print works. Instead, it will ask a federal judge to approve the plan as is.

In a combative court brief, Google said its opponents have failed to ground their objections "in pertinent doctrine and offer no practical alternatives." The brief comes a week after the Justice Department complained for a second time that the plan is anti-competitive.

Approval of the settlement will "open the virtual doors to the greatest library in history," Google said in its brief. "To deny the settlement will keep those library doors locked while inviting costly, fragmented litigation that could clog dockets around the country for years."

The Mountain View Internet giant has been working for years and has spent hundreds of millions of dollars to develop the technology to scan millions of old, out-of-print books from around the world, saying that it hopes to unlock the accumulated wisdom of centuries as it creates a vast digital database that could be searched by anyone. Most of the books are stored in obscure university collections.

Google's ambitions have been delayed by a class-action lawsuit and now the opposition to the proposed settlement of that suit. Google's latest filing sets the stage for a hearing Thursday before federal court Judge Denny Chin on the settlement.

Saying it was seeing substantial progress toward an acceptable settlement but that it still had significant copyright and antitrust concerns, the Justice Department last week suggested that Google and its partners continue to refine their proposal. Federal lawyers said such sweeping marketplace changes should be done through legislation, rather than through the settlement of a private class-action lawsuit.

Few expect the long-disputed matter to be resolved by Chin's decision.

"It could even get to the Supreme Court," said Pamela Samuelson, a University of California-Berkeley law professor who has rallied opposition by academic authors to Google's plans. —‰'Google is going for it,' is the slogan among the people I'm hearing," said Samuelson, one of several Bay Area lawyers scheduled to speak at Thursday's hearing in New York City.

But after more than a year of negotiations and legal arguments, Google and its partners, including the Authors Guild and the Association of American Publishers, have elected to move forward rather than continue compromising.

"We think we have a good shot at it, and we want to hear what the court has to say at this point," Paul Aiken, executive director of the Authors Guild, said Friday. "We think we've made substantial amendments that address the Justice Department's concerns, and we very much want to hear how the court views those."

Joining the U.S. government in opposition to the proposed settlement are several state governments, France, Germany, and key Google business competitors Amazon and Microsoft.

"The problem with this deal basically, it's not that it suffers from a deficiency or two, the problem is that it transgresses major areas of the law, including antitrust, copyright and class action, and the role of the courts and the limits of judicial power. There's a whole host of very important issues," said Gary Reback, a Palo Alto lawyer who represents the Open Book Alliance, a group that includes Amazon, Microsoft and an array of authors and library groups.

But Andrew Gavil, a law professor at Howard University who has been following the case, said the judge is free to ignore Justice Department objections, and it is certainly possible he may do so.

"When you have a settlement in front of you, the parties in front of you are essentially saying, 'We don't want to litigate anymore,' " Gavil said. For many judges, "there is a strong inclination to allow parties who want to walk away from litigation to walk away from it."

Experts said the government's opposition makes Google's legal fight tougher. If the judge "is going to approve the settlement he really would have to do a good job of explaining why he's doing that," Gavil said.

But neither is the government required to accept any ruling by the judge. If the Justice Department disagrees with Chin's ruling, it could file an appeal, or even file its own challenge in court to the settlement on antitrust grounds.

Contact Mike Swift at 408-271-3648.

GOOGLE BOOK DEAL

TAKING A STAND: Google has set a showdown with the U.S. Department of Justice with a court filing defending the $125 million settlement of a class-action lawsuit that the company reached with U.S. authors and publishers more than 14 months ago.

WHAT"S AT STAKE: The Internet search leader is seeking the digital rights to millions of books. Justice Department and others believe the settlement would thwart competition in the book market and undermine copyright law.

WHAT"S NEXT: Oral arguments are scheduled for Feb. 18 in a New York court hearing.

Source: Associated Press