Before getting into the substantive problems with the Google Books Search settlement, here are a few context updates:
- In an admirable attempt to make public documents truly public that is, not behind the required-by-Congress ID-wall/paywall of the PACER system17 one can find almost all of the filed documents in the lead case at The Public Index. It's too bad it's incomplete, but that's probably more due to the slow pace of scanning materials at the court than anything else.
- The Register of Copyright has, umm, registered strong disagreement with the proposed settlement:
[A]llowing Google to continue to scan millions of books into the future, on a rolling schedule with no deadline, is tantamount to creating a private compulsory license through the judiciary. This is not to say that a compulsory license or collective license for book digitization projects may or may not be an interesting idea. Rather, our point is that such decisions are the domain of Congress and must be weighed openly and deliberately, and with a clear sense of both the beneficiaries and the public objective.
[C]ertain provisions of the proposed settlement dramatically compromise the legal rights of authors, publishers and other persons who own out-of-print books. Under copyright law, out-of-print works enjoy the same legal protection as in-print works. To allow a commercial entity to sell such works without consent is an end-run around copyright law as we know it. Moreover, the settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations.
[F]oreign rights holders and foreign governments have raised concerns about the potential impact of the proposed settlement on their exclusive rights and national, digitization projects. The settlement, in its present form, presents a possibility that the United States will be subjected to diplomatic stress.
Statement of Marybeth Peters, Register of Copyright (House Jud. Comm. 10 Sep 2009) (footnote omitted).
- The fairness hearing is still scheduled before the Hon. Dennis Chin on 07 October 2009.
That noted, it's time to move back to the question of "adequacy of representation." Thus far, out of professional courtesy, I have focused on the inadequate representation offered by the named plaintiffs. Recent events particularly those after the extension of the opt-out date have tipped the balance against continued professional courtesy.
Adequate representation, as required by Fed. R. Civ. P. 23 (not to mention basic concepts of due process18), clearly includes the question of whether the proposed representative plaintiffs provide adequate representation of the class. This does not, contrary to what many defense counsel continue to assert despite clear Supreme Court precedent to the contrary,19 require that class representatives have extensive technical knowledge of the complaint, the defenses, or anything else; it requires only that the class representative be capable of protecting the interests of the absent members, primarily through the ability to make decisions. That, however, is no excuse for the Authors' Guild's prominent position in this litigation. Although the Authors' Guild's name remains in the caption, as a procedural matter it should not: The AG is not a named representative. Similarly, the Executive Director of the AG is not a named representative. Neither is the AG the counsel to the class. Thus, the AG should not be making public advocacy statements concerning the merits of this specific piece of litigation... and certainly should not be doing so "on behalf of" either the named plaintiffs or the absent class members.20
The AG's behavior is troubling enough; plaintiffs' counsel's conduct has been downright disturbing. Without specifically questioning counsel's professional judgment in entering into the settlement in the first place I wasn't in the room negotiating, so I do not know what the negotiating posture, the details of resources committed to litigation, or any of a myriad of other factual circumstances behind whatever advice offered to the actual, decisionmaking client included the post-settlement procedures have indicated not just disdain for the rights of absent class members, but questionable professional advice, conduct, and competence. A nonexhaustive list of problems arising strictly from the administration of the settlement includes, in no particular order:
- Failure to advertise in periodicals or on websites aimed at writers and/or their successors in interest; instead, counsel has relied upon general media coverage. This might be cheaper; it sure as hell isn't reaching everyone it is required to. Of course, this is merely a subset of the fundamental problem with adequate notice to absent class members which is counsel's job that underpins the entire settlement structure.
- Failure by counsel to ensure that proposed class representatives actually represent the interests of absent class members. My initial discussion previously is, perhaps, overly technical; suffice it to say that nobody is representing the authors of orphan works... almost by definition.
- Failure by counsel to ensure that the web-based opt-out form provides anything close to an adequate record of opting out to the author. Merely printing the webpage doesn't work; and the "message" received back upon opting out doesn't even acknowledge the time, date, or name of the person(s) opting out, let alone the scope of claims, the pseudonyms used, or anything else!
- Failure by counsel to ensure that the web-based claim form provides anything close to an adequate record of the claims made to the author. This is, perhaps, even more important than the problems described for the opt-out page, because it concerns actual entitlement to money from the settlement.
- Failure to adequately police the list of materials potential subject to the settlement, which continues to grow long after the purported 09 January 2009 "cutoff" date.
- Lack of apparent experience as class plaintiff's counsel. As a former plaintiff's class-action counsel myself (involved in many, many settlements), one of the elements of the submission package was always an experience summary of each lawyer involved in the settlement, on both sides, and an experience summary for any outside administrator hired for the settlement. These were not full resumés, but they certainly identified the individuals to help determine representativeness and ability to assist the actual parties in resolving their disputes. Either I've managed to miss a tiny part of the extensive settlement papers, or nothing of that nature was submitted at all and I've reviewed the papers several times looking for that material.
- Failure to counsel or advise, or (in the worst case) control, public misstatements of fact and law by the putative client (who is not the class plaintiff). Bluntly, the AG particularly in response to public statements made by potential organizational objectors like the William Morris Agency21 has continuously made public misstatements of fact and of law regarding both the foundation for, and provisions and implications of, the proposed settlement. Part of class counsel's job is to prevent such misstatements, or at minimum to ensure their correction in a timely fashion. And, although some of those misstatements might in theory, by a particularly noninquisitive observer be characterized as "mere disagreements," others are not: They are made from inexcusable ignorance... or worse.
- Failure to acknowledge Rosetta Books and the inherent, unresolvable conflicts between class members, both between the "author subclass" and the "publisher subclass" and within each subclass. It's not that the papers come to a different conclusion than I would, which would be bad enough considering that one member of the publisher subclass is still bound by the result of its settlement in Rosetta Books; it's the complete silence on the issue. That reflects not just incompetence, but improper motive.
Judge Chin is entitled to reject the proposed settlement on this ground alone, should the record actually before him support it. I fully recognize that there's a huge difference between "what I know" and "what Judge Chin has in front of him," and that Judge Chin must confine his grounds for decision to the record. I strongly suspect that there's enough in the record, though, to reject the proposed settlement on "inadequate representation" grounds just for these reasons... let alone the other defects, both substantive and procedural, that one can find without digging very deeply.
- Don't blame the courts for this one: The enabling legislation requires both. Although I think PACER is one of the great bargains in American "cost-recovery" systems, it's still a minor annoyance. Congress should, instead, simply give the courts the money necessary to run PACER as a grant in governmental terms, it would be chicken feed and, more importantly, eliminate the sign-in-and-register requirement, which has some disturbing privacy implications.
- No, I'm not going to put a typical legal-writing-style string citation to the two dozen or so leading opinions on the due process implications of "representation" here, especially since those relating to the professional aspects are even more couched in legalese and codewords than is typical for due process questions (and that's a pretty stiff standard). Instead, I'll just point to the reflexively ironic Hansberry v. Lee, 311 U.S. 32 (1940), which involved the author of A Raisin in the Sun and rejects the bindingness of litigation results reached without adequate representation. As an exercise for the student, consider the potential distinction in rights offered by the Google Book Search settlement based solely upon whether A Raisin in the Sun is, itself, in or out of print on the critical date.
- Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966) (a class representative is still adequate if he or she relies upon advice of counsel for technical matters related to the complaint).
- See, e.g., Brown v. Board of Education of Topeka (I), 347 U.S. 483 (1954) a class action in which the NAACP refrained from the public-comment tactics engaged in by the AG in this matter.
- Disclosure of non-conflict: I am not a fan of the William Morris Agency, but that is on personal judgment grounds related to other aspects of the agency's business. I have no conflicts with the agency, and to my knowledge there is no "former client" issue going either direction, nor even an adverse-parties issue.