With the Google book Settlement still pending approval in Judge Denny Chin's court, observers say that a shift last week in Google's stance on the issue of "net neutrality" raises new questions about the deal. The questions come after Google CEO Eric Schmidt and Verizon Wireless CEO Lowell McAdam issued a joint statement on August 9 to promote a joint "policy proposal" to the FCC that would effectively allow broadband and network providers, like Comcast and Verizon, to create "premium" or tiered service for the content carried over their networks. While Google officials deny any deal with Verizon, critics say the proposal represents a striking shift for Google, which has historically been a strong supporter of an open Internet, supporting rules that would prohibit service providers from giving preferential treatment to some content.
Now more than six months since the book settlement's final fairness hearing, New York Law School professor James Grimmelmann suggested that the company's retreat on net neutrality principles could complicate the already complex settlement debate. "What I think the [Verizon-Google] proposal sets up in sharp relief is the question of which services under the [book] settlement are optional and which are mandatory," Grimmelmann explained to PW. "Settlement opponents could well use the Verizon-Google proposal as evidence that commitments or options that don't actually bind Google may never happen, and therefore shouldn't be counted in the settlement's favor."
With the e-book and digital publishing sectors beginning to take off, with a host of new innovative upstarts, critics worry that the Google/Verizon proposal, if adopted by the FCC, could freeze Internet development—with the current players on top. "Think about your cable service," wrote Gigi Sohn, president of the public advocacy group Public Knowledge, in the New York Times. "Do you get to choose what comes on the basic programming tier or on the other tiers that cost extra? No, you don't. You have choice on the Internet because the companies that control access to it (largely cable and telephone companies) were prevented from picking winners and losers." But that could all change, she noted. For example, under the Google/Verizon proposal, wireless networks, perhaps the Internet's fastest growing segment, could be exempted from FCC rules assuring a level playing field for content delivery. "The Google and Verizon policy framework would allow Internet service providers to give priority or ‘managed' access to content and applications providers so their Web sites load faster or have better quality of service," Sohn wrote.
On its corporate blog, Google struck a familiar refrain in defending its joint proposal—political expedience. "Given political realities... we decided to partner with a major broadband provider on the best policy solution we could devise together." In other words, having a deal that protects a piece of the Internet may be better than no deal at all. In devising the Google book settlement, Google also cited political issues, notably orphan works and the opt-in nature of copyright, as politically intractable barriers to creating an optimal books product. Critics of the settlement, however, have long questioned how deep the company's commitment to the public might run when faced with its own corporate interests. The recent shift on net neutrality—and perhaps the "backroom deal" nature of how the proposal came to be—only gives critics more ammunition. "Even if Google today goes ahead with these [settlement] terms, Google five years from now might not," Grimmelmann noted. "The settlement, for example, only says that Google ‘may' provide public access service."
In a blog post, Grimmelmann suggested the company's shift on net neutrality at least raises "a credibility problem" for Google. "When you say that Google is committed to orphan works legislation, is that in the same way it's committed to network neutrality?" he asked. "When you say that reader privacy provisions don't need to be in the Google book settlement because Google is committed to protecting reader privacy, is that in the same way it's committed to network neutrality?"
Procedurally, no settlement objector has yet filed papers with the court to raise concerns over how Google's net neutrality proposal might affect the settlement. "In terms of how these issues get before Judge Chin, the parties can file pieces of paper with him at almost any time," Grimmelmann told PW. "But I suspect that the parties who are most opposed to the settlement are choosing to make these arguments mainly in the court of public opinion for the time being and see little tactical advantage in filing something fresh. Excessive filings can annoy judges. Judge Chin is likely already well along in writing an opinion, and some of this information could be brought up in an inevitable appeal."