05 February 2010

Google Book Search Settlement

Update: DOJ Not Satisfied With the Amended Settlement

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

The Department of Justice has filed an objection to the Amended Settlement (Doc. 922, 04 Feb 2010). Before jumping into that objection, I'd like to reemphasize something that it is not: The opinion of the Register of Copyright. Her objections on substantive copyright grounds — not antitrust and procedural grounds — were very much lost within the DoJ's initial objection (Doc. 720, 18 Sep 2009), and haven't been completely unearthed here (but see 9–10).

That said, the DoJ's objection is quite damning, arguing that:

  • The named representatives don't have the authority to do what the settlement does;
  • The named representatives are, in any event, inadequate;
  • The notice provided has been inadequate;
  • Tasini,34 not the purported "dispute resolution structure," controls disputes over who has the electronic rights in the first place;
  • The structure continues to be inadequate under antitrust law; and
  • Even if approved in principle, the court needs to impose significant additional safeguards.

I suspect that this will strongly influence Judge Chin.

Procedurally, the next step is the Fairness Hearing before Judge Chin on 18 February. This will consist of a string of lawyers, spiced with a couple of laypersons, making speeches to Judge Chin and getting interrupted by him. The Fairness Hearing will not involve witnesses, cross-examination, presentation of evidence, or anything along those lines; it is, instead, a hearing "in equity" (not "in law") before the court. Judge Chin may ask questions of the presenters... but they don't get to talk to each other. Judge Chin will then go away and think about the matter for a while — if he's thoroughly convinced by an objection, maybe as little as a day, but more likely between two and six months — and then issue an order and opinion. That order and opinion may accept, modify, or reject class certification and the settlement independently of each other. IMNSHO, it should also concern itself with whether the two underlying cases can continue to be consolidated... but no party has specifically raised that as an issue, and it's unclear under Second Circuit law whether the only submission that comes close to raising that specifically (the DoJ's!) does so clearly enough to justify it, let alone with standing to do so.

Judge Chin's eventual Order and Opinion may do one or more of:

  • Reject class certification vel non;
  • Redefine the class, including subclassing within the author and/or publisher classes;
  • As I believe he should, but has been largely ignored, deconsolidate the author and publisher cases and force resubmission of separate settlements;
  • Force redesignation of class representatives;
  • Direct modifications to the settlement, and conditionally accept it;
  • Suggest modifications to the settlement, and conditionally reject it;
  • Reject the entire settlement, including class certification;
  • Reject the settlement, but certify the class(es);
  • Approve the settlement without modification (although I don't think this has a snowball's chance in a DC summer of happening).

And anything else that happens depends on what is in his order and opinion. Note that there could well be some overlap.

The next stage may, or may not, be in front of Judge Chin. Some of those possibilities would allow an immediate appeal to the United States Court of Appeals for the Second Circuit, as a matter of right; some of those possibilities might allow an interlocutory appeal immediately to the Second Circuit, if they involve "a controlling question of law, the answer to which will materially advance the litigation" (see 28 U.S.C. § 1292, although that quotation is from a classic opinion interpreting the general question of interlocutory appeals and not from the statute); and some of them will not allow an appeal until a final judgment has been issued (of course, if he approves the settlement in its entirety without modification, that will lead fairly shortly to a final judgment...).

So, in many ways, the fun is just beginning.

  1. Ironically — and indicating that this brief was drafted by the Antitrust Division, and not the Civil Litigation Division — the DoJ's brief never cites Tasini itself, and particularly not footnote 6

    More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.(New York Times, Inc. v. Tasini, 533 U.S. 483, 498 n.6 (2001))

    which pretty definitively answers the question.