The proposed Google Book Search settlement contains a termination clause:
Google, the Author Sub-Class, and the Publisher Sub-Class each will have the right but not the obligation to terminate this Settlement Agreement if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met. Any decision by Google, the Author Sub-Class or the Publisher Sub-Class to terminate this Settlement Agreement pursuant to this Article XVI (Right to Terminate Agreement) will be in accordance with the procedures set forth in the Supplemental Agreement Regarding Right to Terminate. The Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffs and Google, and will not be filed with the Court except as provided therein.
A termination clause is a standard element of contracts and settlements. But this one is a little unusual: it’s secret. The “Supplemental Agreement Regarding Right to Terminate” is a deal between Google and the class representatives (the Authors Guild, the Association of American Publishers, and five each of individual authors and publishers). No one else even gets to look at the termination agreement:
The Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffsand Google, and will not be filed with the Court except as provided therein.
One of the commenters at the Public Index, Gillian Spraggs, asked:
What about the rest of the settlement class? If this document is part of the settlement agrement, surely they have a right to see it?
It’s a very good question. How can members of the plaintiff class properly evaluate whether the settlement is in their interests if the whole thing can be revoked under conditions and by procedures that are kept secret from them? How can the court evaluate whether the settlement is fair and reasonable without knowing what kind of doomsday triggers it contains?
I’m sure that Google and the named plaintiffs will say, “There’s nothing dangerous in there; trust us.” And indeed, it might consist of nothing more threatening than an opt-out threshold. But then again, it might not. Unless the termination agreement is opened up, there’s no way to tell.