In a legal analysis done for the Open Book Alliance, intellectual property lawyer Cynthia Arato, a partner at the law firm of Macht, Shapiro, Arato and Isseries, reiterated her belief that that the Google Book Search settlement in its current form “violates the treaty obligations of the U.S.,” and, if approved, “would “give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress.”
If approved, Arato writes, the settlement, despite removal of most foreign works in the amended agreement, still contravenes fundamental provisions of the Berne Convention for the Protection of Literary and Artistic Works, as well as the “principle of nondiscrimination” within the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs). “Should the settlement be approved, there is good reason to believe that a number of our trading partners will want to initiate proceedings against the U.S.,” she writes. “Indeed, the governments of France and Germany already have taken the somewhat uncommon step of filing objections to the settlement and their submissions make clear that they are deeply committed to protecting their citizens’ fundamental copyright rights.”
While the memo raises no new points, its ramps up attention to the settlement as decision looms on the agreement, and it formalizes the objections Arato highlighted for the court in February. The settlement parties, in their brief to the court, have argued that the settlement agreement violates no treaty or international obligation, and say that foreign law does not apply in evaluating the settlement. “Google is scanning books in the United States and is providing copies to libraries in the United States. For that reason, and in recognition of the principle that copyright law is territorial, Plaintiffs only alleged violations of United States copyright law, and the ASA addresses and settles only those claims arising under United States law,” the brief states.
At the fairness hearing, Arato told Judge Denny Chin that “If approved, the agreement is virtually certain to become the most controversial class settlement ever to emanate from the United States.”
Open Book Alliance director Peter Brantley, a staunch opponent of the settlement, blogged that Arato’s legal memo raises points that extend beyond treaties and laws. “Beyond financial penalties and trade disputes, we have to ask ourselves if we’re happy thumbing our nose at the rest of the world for the benefit of one company. We suggest not. There are alternatives to the GBS that will benefit a broader audience and welcome international partners’ contributions,” he wrote. “Open collaboration that rejects exclusive deals is the best way to create a true international library.”
