GBS Blogging: Two Procedural Updates


Two interesting pieces of news today.

First, the District Court denied two requests to intervene in the case. The Internet Archive had asked to intervene as a defendant, so that it could get the same settlement deal that Google sought. Harry Lewis and Lewis Hyde (both affiliated with Harvard’s Berkman Center) had sought to intervene on behalf of the public at large. Both had sent letters to the Court asking for scheduling conferences so they could make full-scale motions to intervene. No need for scheduling conferences, apparently:

I have construed their letters as motions to intervene, and the motions are denied. The proposed intervenors are, however, free to file objections to the proposed settlement or amicus briefs, either of which must be filed by the May 5, 2009 objection deadline.

This move on the Court’s part is fascinating. One might think that rejecting the motions to intervene at this stage is premature, since neither the Internet Archive nor Lewis and Hyde had actually filed a fully-briefed motion, and now neither will actually be free to make its full case for its right to intervene. On the other hand, the Court has seemingly opened up a door for them by letting them file objections, even though neither proposed to object to the settlement as a member of the plaintiff class. That’s technically what the May 5 deadline was for; it was a deadline for class members to speak up with objections, and now it’s a deadline the would-have-been intervenors will now have to live with. It appears that the Court is trying to channel all comments and objections through a standardized process and a standardized timeline. It wants a stack of papers on May 5, all of which either support the settlement (that motion has already been filed, by Google and the authors and publishers), oppose it (objections), or simply advise the court (amicus briefs).

In other news, a group of authors filed a motion requesting a four-month extension of that self-same May 5 deadline. (It’s an interesting group, including the Steinbeck and Philip K. Dick estates.) The plaintiffs and Google, unsurprisingly, opposed the four-month extension, but said they would be amenable to a 60-day extension. The authors’ request marks the emergence onto the scene of the first significant potential litigator from outside the public-interest community. Perhaps after the extension, of whatever length, the authors will decide they can live with the settlement, or just simply opt out, but perhaps we’re seeing the beginning of direct, adversarial litigation of the settlement. The delay will also be interesting in its own right; since it now appears that everyone involved is willing to wait at least two months, it seems likely to change the timetable on which a lot of things will happen.

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