This is a tangent from the long essay in progress on the suitability of the Google Book Search settlement. Recent events have not changed my opinion of its substantive justification (which is to say almost none); instead, I am digressing back into procedureland.
As I noted last week, the Supreme Court has agreed to consider, and determine once and for all, the following question:
Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?
For several purely procedural reasons, the Court's decision to finally decide this conundrum indicate that all process concerning the proposed settlement in the Google Book Search matter must be stopped, immediately, pending that decision. That means suspending the deadline for opting out; suspending the deadline for filing objections; and suspending the scheduled fairness hearing.10 All of these dates need to be suspended until at least 90 days after the Court issues its opinion in Post-Tasini. (Properly, I suppose it'll get called Muchnick, but I can't resist pointing to what it actually is sort of like my continued references to 2Live Crew instead of to Campbell.) In no particular order:
- The result of the Court's decision will force reconsideration of the adequacy of representation (Fed. R. Civ. P. 23 requirement). If nonregistered books have a claim, the current class representatives are plainly inadequate, and in fact have a serious conflict with a substantial part of the class. If, however, nonregistered books do not have a claim, that creates a conflict with the publishers who were obligated by either or both of the publishing contract and industry custom, which under New York law is also part of the contract to register the books.
- The result of the Court's decision will force reconsideration of the superiority of a class action. I do not even want to think about trying to administer a class action settlement structured even recognizably close to the present proposal if nonregistered US works are within the jurisdiction of the federal courts. Conversely, I do not want to be counsel to any publishers who forfeited authors' rights to attorney's fees, or even participation in the settlement, through the all-too-common failure to register since registration became "optional."
- If the Court decides that registration is jurisdictional IMNSHO, this would be inconsistent with the IP Clause11 that will still leave an unconsidered class that is outside the scope of the question the Court has agreed to review: Authors whose publishers were contractually obligated to register, but whose publishers breached that obligation. This is a much more difficult question than one might think, because it involves not indemnification but the power of any court to enforce indemnification. If registration is jurisdictional, a suit for damages against a publisher claiming failure to register cannot be heard in any court: Not in state court, because the subject matter is not a mere breach of contract, but a Federal right; and not in Federal court, because the absence of a registration blocks jurisdiction there. Or, at least, this question is complex enough that it will have to be resolved... and the proposed settlement is not just utterly silent, but utterly ignorant, on this nonhypothetical set of circumstances.
- Google has made quite clear that it intends to digitize all books. That is, no matter what, this settlement does not actually restrain the intent of a party to continue infringing unrepresented parties' rights. For example, there does not appear to be any representation of works that, under the Copyright Act, are "non-US works" among the plaintiffs, and the requirement for registration in the settlement make things rather dicey for them... particularly for mid-twentieth-century authors whose works were first published in foreign nations and then either not registered in the US or (if required) not renewed in the US.
Thus, without even going to the (dubious) merits of the settlement, there are compelling reasons for the actual counsel in the matter to file a deferment motion with the District Court in the Google Book Search settlement, along these lines:
In light of the Supreme Court's grant of certiorari in the matter styled Reed-Elsevier, Inc., et al. v. Muchnick, et al. ("Muchnick"), No. 08-103 (cert. granted, 02 Mar 2009), which implicates the class definitions and scope of settlement in this matter, Counsel respectfully requests that this Honorable Court order that:
1. All proceedings, filings, deadlines, and other process in this matter be suspended immediately until the ninety-first day following the Supreme Court's dispositive decision in Muchnick; and
2. No further communications shall be made by any party to this matter, or any person or entity acting on any party's behalf, with any actual or potential member of the classes; and
3. All notices of "opt-out" received prior to the date established in point 1 above shall be returned to those parties with a notation that further proceedings will be required; and
4. This Honorable Court shall set a scheduling hearing promptly after the date established in point 1 above to reconsider all deadlines and filings in this matter.
I seriously doubt that will happen, though, given the... reputation of some of the counsel involved. It's the right, and ethical, thing to do; it's actually in the best interests of the absent class members; but it's simply not the style of the particular law firms and litigators, few (if any) of whom have the faintest idea of the unsophistication of the majority of those absent class members, as they're largely used to dealing with securities. (That's not to say that all holders of securities are sophisticated; it's only to say that authors, and their heirs, aren't as "sophisticated" is defined in litigation.)
- Due to several considerations, not the least of which is that I have conflicts with the class and a party across the v. arising from past representation, I can't file such a motion myself. If I could, it would be in the judge's inbox by tomorrow morning (12 Mar 2009).
- U.S. Const. Art. I, § 8, cl. 8. In recent jurisprudence, I am not aware of any purely administrative requirement imposed on a right arising through Congress's exercise of an enumerated power, other than those concerning passage of time (such as the time to file an appeal), that has withstood serious scrutiny as a jurisdictional prerequisite. This is yet another example of it mattering exactly how one loses...