Google – what does the writing on the wall say?

We knew that the US government has been investigating the competition-law implications of the Google Book Settlement and is due to file a document with the court by the end of next week. Now the Government is listening to views that appear to question the validity of the judicial process itself: should matters of this importance be decided in a district court?

Today the US House of Representatives Committee on the Judiciary held a hearing on ‘Competition and Commerce in Digital Books’. Eight statements were given – here. There’s one from Google and from the Authors Guild but perhaps the most striking comes from Marybeth Peters, Register of Copyrights. Her take on the Google Book Settlement is utterly damning.

Peters strongly objects to the different treatment of out-of-print and in-print books, saying that should be irrelevant to copyright protection, and argues that the Settlement could be a spanner in the works of the ongoing work to frame orphan works legislation. She is also concerned about the effects on international relations – the Settlement ‘has the capacity to create diplomatic stress for the United States’.

But beyond that, she challenges the whole nature of the proceedings and the court’s jurisdiction.

She describes how when the the parties in the original suit settled, the Copyright Office was troubled to find ‘the settlement was not really a settlement at all’ because of the powers it would give Google beyond the issues over which the parties originally litigated.

‘We are not experts on the proper scope of class action settlements, but we do wonder whether, as a constitutional matter, a class action settlement could decide issues that were not properly before the Court as part of the case and controversy presented during the litigation.’

She believes – as Microsoft has argued in their objection – that the settlement encroaches on the domain of Congress to frame copyright law.

‘As a matter of copyright policy, courts should be reluctant to create or endorse settlements that come so close to encroaching on the legislative function. Congress generally adopts compulsory licenses only reluctantly in the face of a failure of the marketplace, after open and public deliberations that involve all affected stakeholders, and after ensuring that they are appropriately tailored. Here, no factors have been demonstrated that would justify creating a system akin to a compulsory license for Google – and only Google – to digitize books for an indefinite period of time.’

Could the Government pull the plug on the whole thing and compel the district court to say that the Settlement has been found wanting?