False hope for Google Book Settlement?

The US government filed a statement setting out its views of the Amended Google Book Settlement on Thursday, again rejecting it as it did the original Settlement. Again, the Government said it fails to satisfy the requirements of the class-action procedure and is anti-competitive. Again it has therefore effectively pronounced the Settlement dead but then goes on to say it really wants to see it happen and presents a number of somewhat conflicting options for the court to explore.

It leaves it still uncertain as to whether an opt-out system could ultimately be acceptable in its eyes. It seems extremely difficult to imagine what new form the Settlement could take that would satisfy Google's business objectives and the Government's requirements.

Meanwhile Google is sitting on millions of unauthorized scans of books and continuing to use them to return results in Google Book Search. While this litigation has been trundling on over the last five years, Google's scanner has not been turned off. The scale of the copyright infringement has ballooned. Although it is heartening that the US government has rejected the Settlement, it seems intensely problematic that leaving the possibility of a resolution open could leave rightsholders in a virtually perpetual limbo while Google keeps its foot pressed down hard on the infringement accelerator.