Google Library Project Settlement (1)

On 28 October 2008, the Authors Guild¹ and Google announced a proposed settlement of litigation over the Google Library Project. The AG sued Google and the University of Michigan for their scanning of books in the UM libraries in 2005 without seeking prior authorization from the publishers, authors, or other rightsholders. The lawsuit was filed as a class action purporting to cover all printed works and their rightsholders.

As my earlier screed (linked above) makes clear, I think the lawsuit is fundamentally flawed. I am still working my way through the entire set of proposed settlement documents, but that is over 300 pages (including the appendices... at least two of which appear at first glance to silently modify substantive aspects of the main settlement document). It's definitely time for a major caveat:

What follows is commentary. It is not legal advice for your particular situation. Neither should it be construed as a solicitation of any kind. Conversely, even if you are potentially a member of a covered class, you are not required to pay anyone anything to process anything related to this settlement, unless you choose to retain counsel for that purpose.²

As of this date, the process for dealing with the proposed settlement will look something like this:

1. Beginning on 05 January 2009, a joint venture among the AG, several publishers, Google, and several major university libraries (the Settlement Administrator) will begin contacting those they believe are the rightsholders in books that have been scanned. Notification must be completed on or before 29 February 2009.
2. During the notification process, the various parties and objectors (see below) will be making both routine and nonroutine filings with the court. Many of these will be picked up on by observers with varying degrees of understanding of the class-settlement process. This will undoubtedly result in a lot of both informed and uninformed speculation and outright bloviation.
3. On or before 05 May 2009, anyone who does not wish to be part of the settlement must submit a short form to the Settlement Administrator opting out of the settlement. There will be no fee for submitting the form, and submitting the form does not require entering an appearance or retaining counsel for that purpose. Persons opting out may not object to the substantive terms of the settlement in court.
4. On or before 05 May 2009, anyone who objects to the settlement's terms and wishes to challenge them in court must do so in a formal filing. It will be up to the judge whether this requires a lawyer to appear for individuals, but in my considerable experience managing class actions (over 60 matters) both judges and the other parties will ignore an objection that is not filed by counsel. Anyone who files a formal objection will be bound by the settlement, whether or not it is later modified presuming that the court approves the settlement at all after considering the objections.
5. Some time after 05 May 2009, the court will hold a fairness hearing at which it will consider any objections raised, and even objections that the judge might raise on his own.³
6. Some time after the fairness hearing, the court will issue a formal opinion accepting, modifying and accepting, or rejecting the settlement. Only persons who actually objected to the settlement, or the named parties in the settlement, would be allowed to appeal any part of the court's approval, modification, or rejection of the settlement.

Of course, the court itself may modify any of the above dates. Next time, I'll begin diving into some of the many substantive flaws with this settlement. On balance, I think this settlement is not in anybody's best interests... but, as usual, the actual creators of content will be screwed most thoroughly. For a preview of part of my objection, you might be dubiously amused (and hopefully informed) by my academically oriented, math-fortified analysis of the orphan-works problem (link to abstract and downloadable PDF).

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1. The Author's [sic] Guild has changed its webpage and most of its publications to remove the apostrophe over the last few years. However, the lawsuit itself is still captioned with an apostrophe, as are some of the corporate charter documents. It's rather ironic that an organization for writers can't even get the grammar of its own name correct (dammit, if I have had to struggle through the correct form of the plural possessive in half a dozen languages, an organization of writers should do so without being asked!). For simplicity, and consistency with the previous essay, I'll be referring to "AG" from here on.
2. Unfortunately, there is a small boiler-room industry of questionable operations that offer to "help" class members in major litigation with their claims — for a fee. In my experience, these scavengers harm a great deal more than they help. Although I have not yet seen any of them raising their ugly heads in this lawsuit — yet — the proposed settlement was announced only two days ago, so it's only a matter of time. Don't compound the problems with the settlement itself by letting someone make you pay, even if you decide that it's not worth it to you to either opt out or object!
3. The judge to whom this case is assigned has a history of scepticism of purportedly overbroad settlements. I will be covering "overbreadth" and the class definitions pretty soon.