Delays in finalizing the proposed Google Books settlement look highly probable according to experts following the class action lawsuit. The parties involved in the proposed settlement, which if approved could give Google expansive digital publishing rights, are now negotiating aspects of the settlement, according to The New York Times.

In a recent press statement, the Department of Justice urged Judge Denny Chin of the United States District Court for the Southern District of New York to decline the settlement, and said that the "parties should be encouraged to continue their productive discussions to address those concerns."

James Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School and author of an ACS Issue Brief on the settlement, told The Times:

The news out of this is that there are frantic negotiations going on in back rooms right now. The parties are scared enough to be talking seriously about changes, with each other and the government. The government is being the stern parent making them do it.

Grimmelmann's Issue Brief explored some of the public interest concerns that have arisen from the settlement, such as who will control copyright ownership of "orphan works," which are books whose authors or rights holders cannot be found.

In its statement on the proposed settlement, the DOJ also expressed concern about several aspects of it and urged the parties to "consider a number of changes to the agreement that may help address the United States' concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement's ultimate scope, providing some mechanism by which Google's competitors can gain comparable access."

In a guest ACSblog post, Center for American Progress Senior Fellow David Balto responded to critics of the settlement, calling it "good for consumers" and urging the federal court to accept it.

The Google Book Search settlement continues to draw critics, The New York Times reports. The Times notes a new challenge to the class action lawsuit settlement, which if approved by a federal court, will grant Google expansive digital publishing rights.

James Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School and author of an ACS Issue Brief on the settlement, told The Times that the new filing "may be the most fundamental challenge to the settlement yet."

Scott Grant, a partner at the law firm Boies Schiller & Flexner, is preparing to lodge the filing in federal court today. Grant, who is preparing the filing on his own behalf, told the newspaper, "This is a predominantly commercial transaction and one that should be undertaken through the normal commercial process, which is negotiation and informed consent." He added that Google and supporters of the settlement are "trying to ram this through so that millions of copyright holders will have no idea that this happening."

In his Issue Brief, The Google Book Search Settlement: Ends, Means, and the Future of Books, Grimmelmann examined public interest concerns that have arisen from the settlement, such as who will control copyright ownership of "orphan works," which are books whose authors or rights holders cannot be found.

Grimmelmann asserts in his brief that dealing with "orphan works" is best solved by legislation, not litigation.

David Balto's reply to my Issue Brief on the proposed Google Book Search settlement is careful and thoughtful. Unfortunately, it gets some of its analysis of the settlement's anticompetitive effects wrong. I'll respond to three of the points on which I believe he's mistaken.

First, Balto's discussion of barriers to entry makes an unwarranted leap. He writes, "First, Google will affirmatively not obtain a monopoly over orphan works because the settlement does nothing to make entry more difficult for a second entrant."

He's right about making things more difficult, but wrong about the monopoly. The settlement gives Google a monopoly not by raising barriers for other entrants, but by preferentially lowering them for Google. The barriers to entry for the large-scale market in selling orphan works are currently prohibitive; no one at all can legally compete in it. The settlement opens it up only to Google; and the result will be a monopoly. (I was sloppy about my phrasing in the Issue Brief here -- I said the settlement "creates" a barrier to entry, which may be the source of Balto's more substantive error.)

Here's an analogy to make this distinction clear. Imagine that it were generally illegal to buy or sell milk. A company -- call it Moogle -- obtains from the government a special authorization to start selling milk. Moogle hasn't done anything to raise entry barriers for its competitors; the barriers were forbiddingly high to start with. But as a result of this special dispensation, Moogle now has the milk market all to itself. That's a monopoly.

This leads into a second way in which Balto's argument is questionable. He believes that Google's success in obtaining this settlement means that other potential book-scanners will be similarly able to obtain settlements authorizing them to sell books. He focuses on class certification, which he argues would be readily achievable for a hypothetical second scanner (let's call it "Two-gle"), once Google's precedent is on the books.

I have my doubts. There are serious grounds to question whether Two- gle's motion for class certification would be as trivial as Balto suggests. The Google case is already pushing at the limits of class action law. The parties are spending tens of millions of dollars in legal fees getting this class certified -- and that's with cooperative plaintiffs. Two-gle could quite plausibly face plaintiffs who like the Google deal well enough not to welcome competition. They could sabotage Two-gle's efforts in all sorts of ways: drafting idiosyncratic and fact-specific complaints, fighting any motion to force a class on them, or flatly refusing to negotate for the kind of settlement Google got.