Parties seek Google Books hearing delay; new deal brewing

Updated 2:18 p.m. PDT with comment from Google.

The parties involved in the Google Book Search settlement have asked a federal court to postpone an October hearing to approve the proposed settlement while they work out a new deal.

When the Department of Justice made it clear last Friday that it could not support the settlement as written--which would give Google unique rights to scan out-of-print books still protected by copyright law--it said the parties were in talks to amend the settlement. In a joint brief (click for PDF), lawyers the Authors Guild, the Association of American Publishers, and others asked Judge Denny Chin to delay a hearing on whether to approve the settlement while the parties work out the new terms of the settlement with the DOJ.

"Because the parties, after consultation with the DOJ, have determined that the Settlement Agreement that was approved preliminarily in November 2008 will be amended, plaintiffs respectfully submit that the Fairness Hearing should not be held, as scheduled, on October 7," the plaintiffs in the case said in a briefing. They said Google had given them permission to indicate that the company was not opposed to the motion.

The Open Book Alliance, a group of companies and organizations opposed to the settlement, declared victory.

"This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition. It's also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead," the alliance said in a blog post Friday.

In a statement, Google has this to say: "The plaintiffs moved for an adjournment of the final Fairness Hearing, currently scheduled for October 7. We are considering the points raised by the Department of Justice and others, and we look forward to addressing them as the court proceedings continue."

The parties had originally settled in October 2008, ending a dispute over Google's legal right to scan copyright protected out-of-print books. But the settlement gave Google the sole legal right to scan those books, raising anticompetitive fears and provoking strong opposition from authors, academics, privacy advocates, and some libraries.

Judge Chin had been scheduled to decide whether or not the settlement should go forward in a hearing at the U.S. District Court for the Southern District of New York. The parties asked for a November 9 status conference to discuss the modifications they plan to make to the settlement.

It's not clear whether Judge Chin will automatically approve the request. He could still hold the hearing as scheduled and make his own decision about whether or not to approve the settlement, although that seems highly unlikely given the recent developments, especially the involvement of the DOJ.

It's likewise not clear what types of modifications to the deal are being discussed. The DOJ's main objection to the deal was that "the Proposed Settlement seeks to implement a forward-looking business arrangement rather than a settlement of past conduct," which is not what class-action suits are designed to do, it said in a filing with the court last Friday. It is also concerned about potential violations of antitrust law, concerns that Google has grown accustomed to hearing with mounting government scrutiny this year.