30 April 2012

No Sunday Night Presidential Press Conference This Year

…unlike last year's event right after the Correspondents' Dinner.

  • Here's a shocking, even horrifying, bit of publishing news this Monday morning: some observers wonder whether American book covers are too generic, and thereby don't do their job of attracting potential end-users. I'm shocked — shocked, I say — to find incompetence in sales forces and strategies in the publishing industry.
  • But that's not nearly as either shocking or horrifying as the Microsoft investment in the Nook as part of a patent settlement. (Presuming, of course, that it passes antitrust scrutiny... which, sad to say, is almost a given.)
  • On Thursday, there will be a hearing on the renewed effort to certify a class in the Google Book Search litigation. This is, in one sense, an improvement over the settlement class attempts: As a preliminary step, it evades almost all of the antitrust issues. (Not all of them, for the publisher class; but that's a subtlety for another time and another few hundred footnotes.) I do not see much real possibility of success, particularly after appellate review. Many of the fundamental problems with the settlement class remain in this attempt:
    1. Numerosity (Fed. R. Civ. P. 23(a)(1)) is not now an issue, and never was. There's no question that thousands of authors and thousands of copyrighted works are at issue.
    2. Commonality (Fed. R. Civ. P. 23(a)(2)) is a much more difficult problem. The main issue here — and, I believe, one that absolutely blocks publisher participation — is that certifying a class requires determining not just that the works in question are in copyright, but who controls the particular license at issue... under both the 1909 Act and the 1976 Act. Tasini itself tells us that this is an indeterminate issue, and it will require careful examination of each underlying publishing contract — or making an unwarranted assumption of uniformity.
    3. Typicality (Fed R. Civ. P. 23(a)(3)) is much less difficult than commonality: It's absent. Here, the problem is the Authors' Guild's ineptness. That not one proposed representative has published works of commercial category trade fiction, or scientific/professional/technical references or treatises, or postsecondary textbooks — to name just three obvious areas of high interest in the GBS universe — makes their representation problematic because their own contracts are not typical of works in those areas. As one obvious example, consider the "revised edition" problem...
    4. Adequacy of representation (Fed. R. Civ. P. 23(a)(4)) is also, unfortunately, strongly against class certification. The proposed class simply fumbles the orphan works problem just as badly as the settlement class did, albeit in a slightly different manner. Too, there's a huge difference between the concerns of a "career writer" and an "occasional writer" that the Authors' Guild, by its very nature, neglects.
    5. Relief on a class basis (Fed. R. Civ. P. 23(b)) simply is not administrable by the courts. Although only one subcriterion need be satisfied here, neither of the two main theories — adequate and uniform injuctive relief based "on grounds that apply generally to the class" (consider the contract problems noted for commonality) or "the questions of law or fact common to class members predominate over any questions affecting only individual members" (consider the orphan-works and fair-use problems raised by the inept structuring of and legal analysis behind the complaint).
    6. Adequacy of class counsel (Fed. R. Civ. P. 23(g)) is at best dubious. Class counsel's refusal to bring the result in Muchnick to the attention of the court is merely the tip of the iceberg. Class counsel's failure ab initio to consider the problems raised by orphan works is another tip of the iceberg.

    Remember that a proper certification of a class requires satisfying all six of these criteria... and that anyone aggrieved by either certification or refusal to certify may immediately appeal to the United States Court of Appeals for the Second Circuit (Fed. R. Civ. P. 23(f)). That means that even if Judge Chin ruled on Thursday from the bench — a circumstance I find extraordinarily unlikely — an appeal by anyone with standing who objects to his ruling stops the rest of the litigation while it goes on appeal to the Second Circuit.

    One last note: I'm ordinarily a proponent of class actions as solutions to uniform (or even just similar) policies and practices. I'm just not a proponent of this one, as it is structured from complaint to potential resolution.

  • Yet more linguistic imperialism advocated by the "haves." The key question is a simple one: Why not Chinese (or some "standard" variation, as it's hardly a uniform language) or Arabic (broadest geographic spread of modern languages) instead of English? Very simply, because those do not appear to be languages common at Harvard...