The Laboratorium : GBS: Ambiguous Punctuation, vol. 207

Article XII of the Settlement provides, in part:

[T]he Class Notice Program will consist of the following: …

(e) Settlement Website — maintenance of a website dedicated to the Settlement and through which the Notice, this Settlement Agreement, and other relevant information (translated from English whenever appropriate) will be made available

This provision is echoed in the memorandum of law the plaintiffs filed in support of the motion to approve the Settlement (at page 23):

Plaintiffs and Google will maintain a Settlement website (such as, www.googlebooksettlement.com) dedicated to the Settlement and on which the Notice, this Settlement Agreement, and other relevant information (translated into approximately 35 languages) will be displayed.

Do you think these statements constitute a promise to translate the Settlement into these 35 other languages? Or is it only the “other relevant information” that will be translated? That depends on what you think the scope of the parenthetical phrase is. Does it reaches back past the commas to modify all three items in the list (“the Notice,” “this Settlement Agreement,” and “other relevant information”), or does the last comma limit its reach, such that it only modifies the last?

The Harassowitz objection assumes the former (at pages 6-7). I think that it’s the more natural reading, but it’s not the only possible reading. This distinction may matter, as it appears the Settlement wasn’t in fact translated into other languages. Thus, whether the parties complied with the notice provisions may turn on how to scope a parenthetical phrase.

September 4, 2009 at 11:05 PM

Gillian Spraggs

As regards the problem of exactly how much of the preceding part of the clause is supposedly qualified by the parenthetical phrase: I note that the Notice actually was translated (or ostensibly translated: see below) and that is the first item in the list, coming before ‘this Settlement Agreement’.

‘Whenever appropriate’ would seem to give them an escape hatch: but in that case it seems to me they need to be asked to justify exactly why they thought it was not ‘appropriate’ to translate the settlement agreement, in the context of adequately advising presumed class members of the import of the settlement.

The Harassowitz objection, and the supporting statements by Ahlinder and Sprang, make it clear that the translations of the notices that were supplied were severely deficient, and were apparently generated by a computer program. This raises the question of what, exactly, constitutes a translation. I’d say that ‘translations’ possessing the defects detailed by Ahlinder and Sprang are not, in fact, translations at all. It is not translating something to turn it into nonsense.

September 8, 2009 at 11:28 AM

Eric Hellman

A question from a non-lawyer: would it be possible under the law for Judge Chin to approve the settlement while at the same time modifying the inclusion of foreign rightsholders from the settlement class?

September 8, 2009 at 12:09 PM

James Grimmelmann

No. Judge Chin must either approve the settlement as-is or reject it. He could, however, reject it while stating that he would be willing to approve it if it were presented to him with certain specific changes.