Filed last Friday, the latest version of the settlement is more limited in scope, but has still drawn the ire of critics, who claim it remains rife with “anti-trust, class action and copyright violations.”

Chin evidently disagrees, and Google (GOOG) is obviously quite pleased that he has done so. “The preliminary approval order sends a positive initial message; this agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form,” the company said in a statement.

“We remain hopeful that the agreement will receive final approval from the court,” Google continues, “and will realize the goal of significantly expanding online access to works through Google Book Search, an ambitious effort to make millions of books searchable via the Web.”

In a statement of its own, the Open Books Alliance, one of the settlement’s harshest critics, warned Google not to get too, too hopeful. “Today, in an expected procedural move, Judge Denny Chin granted preliminary approval to the revised Settlement of Google’s copyright infringement lawsuit,” the group said.

“This is not a surprising development and is not any indication that the court will or will not accept the terms of Settlement 2.0,” the Alliance warned. “The same procedural preliminary approval was given to Settlement 1.0, and now sets up a court process that will allow those opposed to the revised settlement to let their objections known to the court. The U.S. Department of Justice has until February 4th to weigh in with the court, as their investigation into the matter continues.”

• Orphan works–books whose copyright holders are unknown–will be overseen by an independent trustee who will administer their licensing, not by Google.
• Books published outside the United States, United Kingdom, Canada and Australia will be excluded from the settlement.

Those are substantive alterations, but they clearly haven’t placated critics who accuse Google (GOOG) of attempting an “end-run around copyright law as we know it.”

The Open Book Alliance–a coalition whose members include the Internet Archive, Amazon (AMZN), Microsoft (MSFT) and Yahoo (YHOO)–has blasted the revision twice already, decrying it as “a sleight of hand” intended to distract people from Google’s continued efforts to establish a monopoly over digital content access and distribution.

“The proposed changes fail to address this deal’s fundamental flaws,” Open Book Alliance Co-Chair Gary Reback said in a vitriolic statement. “Despite Google’s effort to spin this deal, it does nothing to promote competition nor does it reform Google’s exclusive access and monopoly hold on this digital database of books. Their proposed ‘unclaimed works fiduciary’ will have zero authority to promote competition or expand access. It is a cynical diversion away from the parties’ continued reliance on the discredited argument that competitors can obtain access through the very means Google did–getting sued for copyright infringement and abusing the class action process. This deal remains rife with anti-trust, class action and copyright violations.”

“The parties have been in discussions with the Department of Justice both prior to and since the October 7 status conference,” attorney Michael Boni explained in a letter requesting the extension. “We met with the Department as recently as this past Friday, November 6. In light of the above, the parties respectfully request this additional time to file the motion.”

It would seem, then, that the latest version of the settlement did not adequately address the DOJ’s concerns that the agreement could violate antitrust law by giving Google “de facto exclusive rights for the digital distribution of orphan works.” Presumably if it had, it would have been filed on time.

“It is because the parties wish to work with the DOJ to the fullest extent possible that they have engaged, and plan to continue to engage, in negotiations,” the groups wrote in their request to U.S. District Judge Denny Chin. “Nevertheless, it is clear that the complex issues raised…preclude submission of an amended agreement by Oct. 7.” And with that they asked if they could return to the court Nov. 6 with a revised settlement and a new timeline for hearings.

Though it’s not yet clear what form the revised settlement might take or what adjusted terms are being discussed, the opposition is already crowing over it. “This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition,” the Open Book Alliance, an ad hoc group led by some of Google’s largest rivals, said in a post to its blog. “It’s also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead.”

Sun’s (JAVA) shareholders voted to accept Oracle’s (ORCL) offer in mid-July, so all that stands in the way of the deal’s completion is the European Commission. And the EC is set to vote on the merger on Sept. 3.

In August 2007, just after former Apple exec Jon Rubinstein joined Palm, Apple CEO Steve Jobs warned Palm CEO Ed Colligan against poaching his company’s employees. “We must do whatever we can to stop this,” he said, according to communications reviewed by Bloomberg. Colligan declined. “Your proposal that we agree that neither company will hire the other’s employees, regardless of the individual’s desires, is not only wrong, it is likely illegal,” he told the Apple CEO, noting–ironically–that Cupertino had hired away some two percent of Palm’s workforce as it began developing the iPhone.

And that’s proven a wise move. Today, the U.S. Department of Justice is investigating just such gentleman’s agreements as a collusive restraint on trade. And Palm (PALM) and Apple (AAPL) are sparring over intellectual property and the Pre handset, which Apple claims “falsely pretends to be an iPod.” How convenient for Palm that these communications should emerge now when its Cupertino rival is giving it such a hard time. And such a distraction for Apple legal….

Of course, Jobs was right to worry. Within a year of his warning to Colligan, Palm hired away Mike Bell and Lynn Fox, Apple VP of CPU software in the Macintosh hardware division and head of Mac PR respectively, among others hired later. And within two years, Palm debuted a new handset that some consider a worthy rival to the Apple iPhone.

Since Varney’s confirmation in late April, the Department of Justice has seen a sort of Trustbuster renaissance. The DOJ has begun inquiring into potentially anticompetitive recruiting practices in Silicon Valley. It opened an investigation into the Google Books (GOOG) settlement. And now, the Department is scrutinizing cellphone exclusivity deals like the lucrative one between Apple (AAPL) and AT&T (T). Sources close to the DOJ tell The Wall Street Journal that the agency is probing such deals to see if they adversely restrict consumer choice or hamper competition.

The inquiry, which is in its very early stages, follows recent calls for the Federal Communications Commission to open a similar investigation, and it remains to be seen what, if anything, will come of it. For while exclusivity deals may undermine consumers, there’s little doubt that they benefit them as well. After all, AT&T’s iPhone deal with Apple scared the hell out the entire industry, forcing innovations in handsets and networks alike. Were it not for that deal, we might not be seeing the network improvements now occurring–the deployment of high-speed downlink packet access and long-term evolution, or LTE, networks, for example. And we almost certainly wouldn’t have devices like the Palm (PALM) Pre and the BlackBerry Storm.

Of course it is. The combination of Oracle (ORCL) and Sun (JAVA) will result in more interesting and viable solutions! The market will thrive! The customer will benefit from greater choice and flexibility!

“It’s absolutely a good thing.”

And more so now than ever since the Department of Justice is said to be finalizing its clearance decision of the companies’ deal any day now, right?

Right!

Thing is, this wasn’t always Sun’s opinion. In fact, the company’s touting of the benefits of the Oracle acquisition is, dare I say, a tad ironic given its preacquisition opinion of Oracle’s prices. Consider this handy calculator Sun built to show potential customers how much they could save by going with Sun’s SOA platform over Oracle’s WebLogic Suite (click on the image below).

$8,610,000 for Oracle Fusion? $2,200,00 for Sun SOA Perpetual? Why the choice is clear: Sun, ALL THE WAY. “Oracle WebLogic Customers–Reduce Costs and Eliminate Vendor Lock-in with this limited time offer,” Sun shouts from the page.

Eliminate Vendor Lock-in.

Heh. Act now before the DOJ clears the merger….

The Department of Justice’s inquiry into Google’s proposed book-search settlement continues on apace with various publishers today claiming to have received civil investigative demands from the agency’s antitrust division. These are simple requests for information and indicative of little more than the DOJ’s concern that the settlement might impair competition in the market for digital books.

As one publishing industry executive told The Wall Street Journal, “The Justice Department said they were going to investigate, and this is what they do. This isn’t a criminal matter. They are looking at all aspects of the proposed settlement. It shouldn’t be overblown.”

That said, that the DOJ even has such concerns is problematic for Google (GOOG), which may find its efforts to restructure the book industry hamstrung by this evolving inquiry.

It’s not clear what activities are at issue here, but if they’re found to be in violation of the FCPA, Sun (JAVA) could be in a for a rough time of it. As the company itself notes, “The FCPA and related statutes and regulations provide for potential monetary penalties, criminal sanctions and in some cases debarment from doing business with the U.S. federal government in connection with FCPA violations, any of which could have a material effect on our business.”

Also disclosed in the filing: three class action suits seeking to block Oracle’s $7.4 billion acquisition of the company. “Three putative shareholder class action were filed by individual shareholders on April 20, 2009, April 30, 2009 and April 30, 2009, respectively, in Santa Clara County Superior Court naming Sun and certain of our officers and directors, as well as Oracle Corporation, as defendants,” Sun explains. “The complaints, which are similar, seek to enjoin the proposed acquisition of Sun by Oracle Corporation and allege claims for breach of fiduciary against the individual defendants and for aiding and abetting a breach of fiduciary duty against the corporate defendants. The complaints generally allege that the consideration offered in the proposed transaction is unfair and inadequate. Sun and the other defendants have not yet responded to the complaints.”

Wonder what Oracle (ORCL) will make of all this?

Sources briefed on the matter say DOJ attorneys have contacted Google (GOOG) as well as the Association of American Publishers and the Authors Guild about the antitrust implications of the agreement. Presumably at issue here are concerns over the settlement’s opt-out terms–authors and publishers who don’t opt out have effectively opted in–and the fate of orphan works, books still in copyright but whose copyright owners are unknown.

Orphan works number in the millions and the fear is that this settlement gives Google a powerful blanket license for them. As Pamela Samuelson, director of the Berkeley Center for Law & Technology, recently noted:

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them….The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world….Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions….Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Samuelson concludes that the Book Search agreement as written is essentially a major restructuring of the book industry and an anticompetitive one at that. If that is indeed the case–and Google maintains that it is not–it’s worrisome indeed. Certainly, it’s reason enough for the DOJ to give the agreement a good once-over.

Google abandoned [its deal with Yahoo] not because pressing ahead with it ‘risked’ a protracted legal battle, but because it guaranteed one.”

I wrote that on Nov. 6, following the official dissolution of Google’s (GOOG) proposed advertising partnership with Yahoo (YHOO). Turns out the guarantee to which I referred was an ironclad one. Sanford Litvack, the attorney who would have been lead counsel in the event of a government antitrust case against Google, tells American Lawyer Daily that the Department of Justice was literally hours away from suing the company when it bailed on the deal. “We were going to file the complaint at a certain time during the day,” he explains. “We told them we were going to file the complaint at that time of day. Three hours before, they told us they were abandoning the agreement.”

Had Google not turned tail, the DOJ would have charged it with violating Sections 1 and 2 of the Sherman Act. Said Litvack, “It would have ended up also alleging that Google had a monopoly and that [the advertising pact] would have furthered their monopoly.”

As I wrote back in November, “Internet search advertising and Internet search syndication are natural monopoly businesses. And, according to the DOJ, Google is their presiding monopolist.” Truer words, eh?