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 Books—in 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 reason—the 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 remedy—and certainly a remedy involving unknowing parties.
The ultimate irony here is the usual mechanism of class remedies: Usually—as in the horribly structured "database settlement" also "brokered" of late by the Author's Guild—everyone 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:
- Hold the copyright to a literary work that is contained in the library of the University of Michigan; and
- Have not transferred a license to a third party that would authorize the conduct alleged; and
- Have not otherwise approved of the conduct alleged consistent with the signed writing requirement of 17 U.S.C. § 204.
Class B is initially defined as all persons or entities that:
- By contract or operation of law hold a license that would authorize the conduct alleged to a literary work that is contained in the library of the University of Michigan; and
- Have not otherwise approved of the conduct alleged consistent with the signed writing requirement of 17 U.S.C. § 204.
This should make one major procedural defect in the case as filed readily apparent: There is no adequate representative named for class B.4
- I'm also displeased with the grammar in the Author's Guild's name, since there is more than one author member and more than one kind of author. The irony of an arguable grammatical error in the name of an organization for commercially published writers need not detain us long, though.
- To make one thing perfectly clear at the outset: I think it is possible to file an appropriate lawsuit on this particular matter. I just don't think this one, as presently constituted, is it. Since all of the problems I'm going to point out are curable, and in any case will be the result of one or more motions or opinions unless it is quickly settled, I don't feel like I'm betraying my side… whatever that side may be, which shouldn't be much of a surprise but probably will be to those who think I'm anti-Internet after Ellison.
- Without going into too much of the mechanics, there are essentially four specific requirements and one overriding factor involved in certifying a class action. The four specific requirements are that the named class representatives (usually called "named plaintiffs") must (1) have claims typical of the class members they would represent, (2) represent a class of such typical claims that is sufficiently numerous to justify class certification (usually from 15 to 40 is enough), (3) be "adequate representatives" of the class (usually defined to mean "capable of making the decision after appropriate legal counsel and free of conflicts of interest," although many defense counsel use this factor as an excuse for character assassination and harassment), and (4) have operative facts in common with those of the represented class. The overriding factor is that a class action must be a superior means of adjudicating at least part of a case because (a) it can provide appropriate relief and (b) the class-related factors will predominate over any individual factors. See, e.g., Rivera v. Fair Chevrolet Geo Partnership, 165 F.R.D. 361, later decision, 168 F.R.D. 11 (D. Conn. 1996), for an exceptionally balanced and detailed consideration of both the general principles and defense tactics in class certification.
- Just to make one other thing perfectly clear: In the mid-1990s, I was a plaintiff's-side class-action-oriented attorney in Chicago; in fact, I was almost solely responsible for the Rivera matter cited in footnote 3. I am in favor of class actions, and I think that a lot of cases that should be managed on a class basis aren't either through failure to plead it as a class or (often unjustified) refusal to certify the class. Nonetheless, because this particular matter so heavily concerns noneconomic rights of which authors and their agents remain ignorant, we need to tread very carefully here.