I write today on CNET (see “Gripes over Google Books go Technical”) about the Department of Justice’s filing last week in the Google Books case.  The Amended Settlement Agreement (ASA), released in November, will be discussed by the parties at a fairness hearing on Feb. 18th.

The DoJ continues to object to the settlement, but now their objections to the most recent version are considerably muted from earlier filings.  Principally, they now argue that the mechanisms of the class-action lawsuit is inappropriate for resolving long-standing problems in the law of copyright, most importantly the growing category of works whose rights holders are unknown and unknowable–the so-called “orphan works.”

It’s true that the litigation started out challenging Google’s scanning and making available for search purposes the text of out-of-print books.  The authors and publishers argued that action was wholesale copyright infringement.  Google countered that it was a fair use, a statutory exception to the rule that requires the permission of the rights holder to copy all or part of a work.  Rather than litigate that point, the parties decided to create a new business model for making out-of-print texts available in digital form.  (Owners of rights to in-print texts have dealt separately with Google.)

The DoJ understands the need for a solution to the orphan works problem created by repeated and retroactive extensions of copyright terms, a problem created by Congress over the last several decades.  They just don’t think that the ASA, or more to the point class action litigation, is an appropriate legal vehicle to solve it.

I note in the piece that class actions serve a wide variety of important uses, and that it is not unusual for such lawsuits to stray far from their initial claims into something approaching the restructuring of broken industries.  Whether this is such an occasion will be a matter first for the district court judge, Danny Chin, to decide.  No doubt the case will eventually be appealed to the Second Circuit Court of Appeals, which may take a different view.  The ASA may sink or swim on grounds other than its status as a class action.

That the government is largely falling back to technical objections, however, seems significant.  We’ll see how significant in the coming months.