19 February 2010

GBS: General Comments on the Fairness Hearing

First, here are a few others' summaries of the chaos of the fairness hearing before Judge Chin yesterday (18 February, alphabetical order):

  • Andrew Albanese at PW asserted that "For his part, Chin gave only slight clues to his thinking, telling the parties at the outset of the hearing he had both 'an open mind' and, at the end of the hearing, that he had 'a lot to think about.' While engaged, curious, and at times humorous, he firmly moved the hearing along and gave little clue to which side he may be leaning." Yeah, that's a big surprise — Judge Chin never gives away how he's going to rule, even when he rules from the bench.
  • Philip Jones at The Bookseller appears to have relied almost entirely upon Albanese's report, with an occasional nod to other reports. Ironically, most of Jones' citations to other sources go behind paywalls...
  • Cecilia Kang at WaPo concentrated her summary on the DoJ's objections. As a reminder, the DoJ's objections were not on behalf of the Register of Copyright... since the DoJ is in the executive branch, while the Copyright Office is part of the Library of Congress, which in turn is in the legislative branch, this isn't surprising.

What I find most frustrating about these accounts is that it is quite apparent that none of the reporters have the foggiest idea of what a "normal" fairness hearing looks like. (Well, neither did counsel for the Authors' Guild before they put forth this monstrosity...) Although Judge Chin quite properly maintained public disengagement from the merits — it's a hearing, not oral argument on appeal — comments made by others inside the courthouse who have participated in fairness hearings before indicate that he was not very happy with the minimal scope of changes in the amended settlement. Ordinarily, when the parties ask to defer the fairness hearing in the face of objections, the amendment — and briefs supporting the settlement — at least deals with the subject matter of the objections. This amendment (and the supporting briefs) did not.

Further, it is quite apparent that many of the objectors and supporters just summarized their own briefs; that's not just bad rhetoric, it's improper. See Man. Complex Litig. (4th) at §§ 21.634, 21.643; see also In re “Agent Orange” Prod. Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984), aff’d, 818 F.2d 226 (2d Cir. 1987).35 Instead, those objectors and supporters should have taken the five minutes afforded them to discuss the replies to their written submissions... such as the egregious misrepresentations (so egregious that they implicate, and perhaps violate, R. Prof. Cond. 3.3(a)(1)) of the objections, the facts, and the relevant authority found in the AG's and Google's reply papers.

I have quite a bit of sympathy for Judge Chin. He's fighting a monster, but provided only a pocket-knife from too many of the parties, objectors, and supporters to deal with it. One of the rules of thumb of good brief-writing is that the judge should not have to engage in further legal research just to figure out what the issues are. Both the papers themselves and the progress of this hearing demonstrate pretty conclusively that Judge Chin will have to do so.

  1. This represents the proper use of a book-scanning system... as federal opinions are, by definition, in the public domain (no matter what West whines about otherwise). It thus gives me some evil pleasure to cite this way against the GBS...