The DOJ submitted comments on the proposed amended class action settlement agreement between Google Inc. and author and publisher groups to resolve copyright infringement issues arising from Google’s efforts to create an online digital library by scanning books from various sources.

While praising the amended settlement agreement for making “substantial progress,” the DOJ contended that class certification, copyright and antitrust issues remain. Regarding class certification and copyright issues, the DOJ views the agreement as “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.” With respect to its antitrust concerns, the DOJ noted that the agreement “confers significant and possibly anticompetitive advantages on Google as a single entity, thereby enabling the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats.” Nonetheless, the DOJ expressed that it is optimistic that a beneficial solution for the parties and the public could be reached with continued collaboration.

The Open Book Alliance (OBA) – a coalition of technology companies, author groups, and library associations – continues to object to the settlement. The OBA calls for congressional discussion of the issue and proposes that a “digital book database should be entrusted to a neutral, civic, not-for-profit organization,” like the Library of Congress.

On February 11, 2010 Google filed a brief responding to criticism of the amended settlement agreement focusing primarily on the public benefits of its digital library project. Notably, Google Books would provide the general public with access to rare book collections that are currently only available to a limited few and would lessen inequalities among educational institutions by providing students everywhere – not just at major research institutions – with access to the same wide-range of content. Google also noted that it does not have monopoly power as a new entrant and that there is no “dangerous probability” that it will acquire such power in any book market. Furthermore, Google contends that it will be creating an entirely new product, the institutional subscription, that would not otherwise exist without the amended settlement agreement. Pricing of institutional subscriptions would require review and approval by a not-for-profit entity (i.e., Book Rights Registry) that represents those with copyright interests in the electronically published written works.