After William Morris’s first letter to its members recommending opting out, the Authors Guild came back with a strong reply. That led William Morris to issue a second letter. This time, the Authors Guild didn’t issue an official statement or hold a conference call; it just did some interviews with the press disputing William Morris’s version.
I would like to dwell only on one specific point made by the Guild’s executive director, Paul Aiken. In an interview with Publishers Weekly, he said, “authors who don’t want to sue Google should stay in the settlement.” He’s right in the sense that the biggest benefit of opting out of the settlement (as opposed to opting in and Removing ones book) is the chance to win a lawsuit against Google. That’s the center of what you give up by settling. If you can’t actually pull off the lawsuit, then you have little to gain by retaining the right to sue. For most authors, that lawsuit would be impossibly expensive.
So Aiken is right in that sense, but keep in mind that this is one reason why we have class actions. There are many lawsuits that would be infeasible on an individual basis but become feasible with ten, a thousand, or a million plaintiffs who can share the costs (often shared on a contingency basis, to be paid out of the expected winnings). Just because an author wouldn’t, couldn’t, or shouldn’t sue Google doesn’t mean that authors, plural, wouldn’t, couldn’t, or shouldn’t. The Authors Guild chose to make this a class action, in part, so that authors could speak with one voice.
That kind of rolling-up of many lawsuits into one has obvious risks. Not all authors might want to speak with that voice. The lawsuit might be conducted (or settled) incompetently, or in a way that favors some authors over others. When you pile together in one boat for the lawsuit, you all become dependent on the skipper. And that’s why there are rules about class actions to protect class members. Those rules include things like fairness hearings, notice, and … opt-out rights.
And thus, that’s where the focus of the action will be in the next few months: the rules and implications of class actions. It’s the class action that elevates this settlement from being merely big to being remarkable. It’s the class action that magnifies the antitrust and privacy risks. It’s the class action settlement that invites close scrutiny by the court. And it’s the class action’s implications that are at the heart of the back-and-forth between William Morris and the Authors Guild. Keep your eye on the class-action ball.