In testimony before a hastily announced House Judiciary Committee hearing on September 10, U.S. Register of Copyrights Marybeth Peters, in her first detailed comments on the subject, called the Google Book Search Settlement “fundamentally at odds with the law.” In a blistering assessment, Peters told lawmakers that the settlement was in essence a compulsory license, and that only Congress—not the courts—could enact such licenses. She said the deal “makes a mockery of Article I of the Constitution.” Association of American Publishers' Allan Adler said the AAP “respectfully disagreed” with Peters's views and told PW that AAP will respond more directly when it files its briefs with the court later this month.
Peters also testified that the settlement could jeopardize Congress's efforts for more meaningful orphan works legislation—a point Adler said he found ironic, as publishers are strong backers of orphan works legislation and have worked unsuccessfully for over six years to get a bill through Congress. Peters also warned that inclusion of foreign works in the settlement could breach international treaties and referred to objections by both the French and German governments. Last week, Google agreed to address international concerns by excluding foreign works from the settlement that are still commercially available. In addition, the Book Rights Registry, the independent entity created to administer the settlement, said it would include two non-American members on its eight-person board. The moves come after a hearing on the settlement on September 7 in Brussels by the European Commission.
Last week's events, meanwhile, opened with another concession: Google's David Drummond announced that the company would permit any retailer to sell access to the out-of-print books Google scans. “Google will host the digital books online, and retailers such as Amazon, Barnes & Noble or your local bookstore will be able to sell access to users on any Internet-connected device they choose,” Drummond explained in a statement. Amazon's Paul Misener, an opponent of the settlement, said that concession changed nothing. “The Internet has never been about intermediation,” Misener, Amazon's vice president of global policy, told the Judiciary committee. “We're happy to work with rights holders without anybody else's help.”
With the congressional hearings, all three branches of government are now involved with the Google Book Search Settlement. It is unclear, however, why Congress is suddenly concerned with the settlement just weeks before the court is set to consider approval, or what it might do, if anything. Rep. Zoe Lofgren, a Democrat who represents Silicon Valley, suggested that Congress should stay away. “At this point, we don't have a role to play,” she said, adding that the settlement was “the private sector achieving what we failed to achieve” in terms of legislation. However, Rep. Hank Johnson, a Democrat from Georgia, suggested that the settlement was a “classic case of legislating from the bench.” Adler said he believes it is unlikely the hearing will result in any action, and that the final determination of the fate of the settlement will fall to the court.
Peters was the first government official to weigh in on the settlement. “This is a big deal,” blogged New York Law School professor James Grimmelmann. “I would be shocked if the [Department of Justice's] filing [September 18] did not incorporate many of her concerns. The opposition of the [Copyright Office] would be a very serious issue for Congress and the courts.”