|Scrivener's Error||Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.|
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I am more than moderately displeased with the Author's Guild's lawsuit against Google from a procedural perspective.1 Professor Solum has a useful introduction to one aspect of the procedural morass raised by this case… and points the way to the ultimate solution (which is probably about three posts down the road from here). So, for the next few posts, I'm going to rip into the procedural problems with the case as it was filed.2
In any event, like Professor Solum we should start with the class definition, which is:
The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan.
This class definition was obviously crafted by someone who had never seen a commercial publishing contract, probably never seen an academic or professional publishing contract, had never heard of Rosetta Booksin short, knew nothing of publishing law and practice. The Class can't be that big for a very simple reason: the right to do what Google appears to be doing may have been licensed to a third party, which in turn may not object to Google's conduct. And that "may" is a nontrivial qualification, because it means that the three named plaintiffs are almost by definition not typical of the plaintiff class.3 Further, this isn't a simple matter of "does the contract explicitly transfer the rights?", either; that's what Rosetta Books concerned, and the only substantive opinion is a nonbinding district court opinion concerning one publisher's contracts from a specific time period.
At a more practical level, this class definition is unmanageable for another reasonthe problem of orphan works, which is another demonstration of a factor that will probably predominate in many claims. This alone will make any court that will ultimately be responsible for administering a remedy in any judgment against Google wary of too-broad a remedyand certainly a remedy involving unknowing parties.
The ultimate irony here is the usual mechanism of class remedies: Usuallyas in the horribly structured "database settlement" also "brokered" of late by the Author's Guildeveryone who falls into the class definition is bound by the settlement unless they opt out. Given that opt-in/opt-out is precisely what is at issue in Google's program, flowing in the opposite direction, this seems rather silly. It wouldn't have been that hard to both acknowledge reality and make the class definition logically consistent with the cause of action:
Class A is initially defined as all persons or entities that:
Class B is initially defined as all persons or entities that:
This should make one major procedural defect in the case as filed readily apparent: There is no adequate representative named for class B.4
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infamous threads that have appeared here
by unravelling them from the blawg tapestry (and hopefully eliminating some
of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.
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