In a new filing before the U.S. District Court for the Southern District of New York, the DOJ said the amended settlement agreement (ASA) attempts to use the class-action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court.

"The ASA purports to grant legal rights that are difficult to square with the core principle of the Copyright Act, that copyright owners generally control whether and how to exploit their works during the term of copyright," the DOJ said. "Those rights, in turn, confer significant and possibly anticompetitive advantages on a single entity -- Google."

Shutting Out Rivals

The ASA gives Google the exclusive right to sell full access to books to libraries as well as market copyrighted works to consumers in a variety of ways: As online offerings, e-books and print-on-demand publications. Google also would have the exclusive ability to exploit without risk of liability so-called "orphan works" -- publications whose rights holders cannot be identified or located after a diligent search.

"There is no serious contention that Google's competitors are likely to obtain comparable rights independently," the DOJ's attorneys noted. "The suggestion that a competitor should follow Google's lead by copying books en masse without permission in the hope of prompting a class-action suit to be settled on terms comparable to the ASA is poor public policy and not something the antitrust laws require a competitor to do."

For example, competitors such as Amazon.com -- which has already amassed a library of approximately three million digital titles with permission from copyright holders -- would be shut out of the marketplace. What's more, the deal would presumably unfairly benefit Google's existing online search business, which already holds a relatively dominant market share.

"That dominance may be further entrenched by its exclusive access to content through the ASA," the DOJ observed. "Content that can be discovered by only one search engine offers that search engine at least some protection from competition."

A Bridge Too Far

The DOJ's statement of interest characterizes the ASA as "a bridge too far" in that it asks the court to address issues not directly related to the settlement of the original dispute over Google's scanning of millions of copyrighted works to offer snippets of text in online search results. "Setting up a mechanism that would allow Google to sell entire works as the means for resolving future claims by absent class members for activities well beyond the facts underlying the complaint" goes beyond the court's jurisdiction, the DOJ said. (continued...)

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