07 October 2009

GBS: Status Update

The Settlement (in essay form)
The Lawsuit (in essay form)

This is a status update only; I am working on some more-substantive responses to Professor Tim Wu's recent piece, which fit in nicely with where the long-form-version of the comments on the settlement was going anyway. (Quick preview: Well considered, but ultimately fails to integrate a couple of major problems with market definition that end up driving the "correct" — or, at least, consonant with reality — outcome.)

As far as the settlement's procedural posture goes, the status hearing this morning produced few surprises. Nobody even came close to acknowledging adequacy of representation, or the elephant in the room (see the next paragraph). The lawyers who did speak anticipated providing a new settlement by 09 November 2009 (or, in all probability, 12 November 2009 — with the Veterans' Armistice Day holiday in there, I suspect it really will slip a couple of business days). They also proposed a short objection period, limited to the changes in the settlement (does that mean they're going to give us a redline? I doubt it), of about two months. Judge Chin appeared to accept this from the bench, but also requested a status update should the parties be unable to present a settlement. In a not entirely surprising response, the lawyers for the AG — further calling into question their own adequacy — indicated that document discovery is almost complete, but that "some" depositions would be required. Judge Chin has not yet issued a written order via PACER, but it looks like the revised schedule will be something like this:

  • The existing parties will file their proposed revised settlement on or about Monday, 09 November 2009
  • Objectors — and, although it's not entirely clear from the summary I got of the oral proceedings, presumably new opt-outs — will be allowed approximately two months to file; that would be Monday, 04 January 2010 (another reason I think the schedule will shift)
  • Objectors will probably be limited to commenting only on the changes in the settlement, although I suspect that a short comment objecting to the failure to change aspects already the subject of other objections would be proper
  • A fairness hearing would then follow in early to mid February, 2010; despite the nomination to the Second Circuit, I suspect that Judge Chin would handle this himself, as the confirmation process will almost certainly be incomplete
  • Should the settlement not be approved, or timely appealed, all bets are off

Which leads to the elephant in the room: Muchnick. Oral argument was held in the Supreme Court this morning. I'll have more details once the transcript becomes available later today, if warranted; otherwise, I'll just fold them into something else. The bottom line is this: The oral argument indicated five, and probably six, votes for reversal... on some grounds.1 If that happens, though, it will almost certainly not be issued in time for the revised settlement to consider its effects by 09 November, and probably not in time for objectors to discuss it by early January. Again, I call on Judge Chin to stay the GBS cases until after the Supreme Court rules in Muchnick... if only so that the class definitions will be legally sound.

Update after reading the transcript of the oral argument It appears that my informant may have been a bit optimistic; my reading of the tea leaves shows a significant chance of a 4–4 split and no definitive decision on the jurisdiction issue. This creates a real problem with the jurisdiction/element of the claim issue that nobody grasped: The distinction seemingly made between "US works" and "non-US works"... which, as a matter of logic, should not be jurisdictional, except under the "a court always has jurisdiction to consider its own jurisdiction" meme, which — in turn — is inconsistent with the (admittedly non-self-executing) requirements of the Berne Convention. In short, it's a mess.

My approach is to look to a part of the Copyright Act of 1976 that was not codified in Title 17: 28 U.S.C. § 1338; a part of the Copyright Act of 1976 that was codified in Title 17: § 301; and the language of the ugly § 411, which is what is at issue here. In the same statute, Congress said "jurisdiction" explicitly twice (the first two) and did not the third time, which implies to me that the difference was on purpose. Further, contrary to Chief Justice Roberts' remarks during the oral argument, the language in § 411(a) is not operatively different from that in Arbaugh that was found nonjurisdictional, precisely because of duties implicitly imposed by the Berne Convention (and powers created in the Constitution) that put the Copyright Act right back in the same "box" as the employment statute at issue in Arbaugh.

  1. As I noted previously, Justice Sotomayór has recused, so the Court will decide based on eight participating justices. That still means that five votes are necessary to actually decide the matter; a 4–4 tie results in affirmance of the decision below without precedential effect, which in this case would mean that the settlement process has to go back to the District Court and that the class definitions must be limited to registered copyrights. Then, of course, we get to argue over whether a "registered copyright" is one that was initially registered, but not renewed... and whether the publisher's registration of an entire issue covers the individual works.

    Disclosure: The counsel selected to present oral argument — Professor Deborah Jones Merritt of that school in Columbus — was at Illinois when I was there, and was Associate Dean. She was also the instructor for Advanced Torts when I took it, which turned out to be largely devoted to the reputational rights: defamation, privacy, publicity. And I'm sorry, Professor Merritt, but you're in the wrong on this one... which is almost inevitable, and not your fault, because the Supreme Court appointed you to argue on behalf of a decision that all of the parties below (and even potential intervenors!) held was wrong as a procedural and constitutional matter. I think your merits brief's criticisms of the unfairness of the actual process and substance of the settlement is correct; that, however, is outside the scope of the question presented by the Supreme Court.