GBS: Final Filings Roundup

The e-filing spigot came back on late last night. Between then and the 10:00 AM deadline today, interested parties filed about a hundred documents with the court. Here’s what’s going down:

  • The Cornell University Library filed a two-page letter endorsing the settlement, whose “potential benefit … to researchers is inestimable.” It echoes some of the library associations’ concerns about excessive pricing and suggests “continued oversight,” but the overall tone is highly positive.
  • Ten European members of the Hachette publishing family filed a coordinated set of objections. The objections are based in their status as European publishers who see the deal both as unfair to them and contrary to EU law.
  • The Computer and Communications Industry Association filed an amicus brief in support of the settlement. The CCIA argues that the settlement is pro-competitive; its analysis is specifically focused on the kinds of high-technology issues in which the CCIA specializes. CCIA member Google is sure to be happy with the filing; CCIA members Microsoft and Yahoo!, not so much.
  • Consumer Watchdog, having trimmed its amicus brief to 25 pages, filed to object, raising class action, court-Congress, Berne, and antitrust issues.
  • Members of the Japan P.E.N. Club filed an objection. Their complaints echo many of those from the Europeans—abuse of Berne, notice problems, etc.—but also add a direct attack on personal jurisdiction. I think the Supreme Court’s Shutts decision (alluded to here a few days ago) eliminates the personal jurisdiction objection as to plaintiff classes—but I have never seen a case better designed to raise the question of whether Shutts itself is in error.
  • The Canadian Stanards Association, filed an objection. The CSA specifically objects that the settlement doesn’t enjoin Google from scanning books published after the cut-off date of January 5, 2009—thus inviting Google to scan more books without permission and start the cycle of hate all over again.
  • Sony filed its expected amicus brief in support of the settlement, citing procompetitive effects in the markets for e-books and e-book readers.
  • The antitrust professors filed their amicus brief in support of the settlement. As expected, it’s a sharpened version of Elhague’s paper.
  • Richard Blumenthal, the Connecticut Attorney General, filed an objection on two very interesting grounds. On the one hand, he objects to the settlement’s handling of unclaimed funds, arguing that state lost-property law applies instead. And on the other, he asserts that the court has no jurisdiction to bind the state of Connecticut.
  • The EFF and its allies filed an objection on behalf of a group of authors concerned about privacy, including Michael Chabon, Jonathan Lethem, Bruce Schneier, and Jessamyn West.
  • Authors Charles Weller and Dirk Sutro object to the plaintiffs’ attorneys fees and to the fact that the Registry will be supported out of authors’ and publishers’ 63%, rather than out of Google’s 37%.
  • The Open Book Alliance filed a brief objecting to the settlement on antitrust grounds.
  • The Harold Bloom coalition of authors filed a wide-ranging objection that cites copyright, antitrust, and class-action problems. In a tactically aggressive move, they also demanded discovery from the plaintiffs and Google on a number of points—including the secret termination agreement.
  • The French Republic joined its neighbor to the east in formally objecting to the settlement (they share a lawyer but filed separate briefs). In addition to sounding some by-now-familiar European objections to the settlement, they argue that it will have harmful effects for cultural diversity.
  • Yahoo! joined in the pile-on with an objection of its own. The most Yahoo!-specific argument is probably the one that the settlement will give Google an unfair advantage in the search market.
  • The Internet Archive filed an amicus objection hitting the class certification issues hard.
  • Lyrasis and two other library networks filed the most focused amicus objection I’ve seen: a challenge to the definition of “Institutional Consortium” in the settlement.
  • The Free Software Association and Karl Fogel filed a short class-member objection that the settlement imposes unfair conditions on authors who wish to share their books freely (e.g. under the GNU Free Documentation License).
  • Microsoft filed a class-member objection on court-Congress and class-action grounds.
  • ProQuest filed an objection to the settlement “as a class member who has played by the rules of copyright and contract for decades and now risks being punished for that vigilance by the unintended consequences of an overly broad mass settlement.”
  • The Songwriters Guild of America filed a brief class-member objection to the inclusion of printed music and lyrics in the class definition.

That’s a lot, but it’s not quite all. EPIC had its filing rejected by the clerk because they tried to file hard copy rather than electronically. (It also appears that the judge doesn’t like their desired procedural posture: intervention, rather than objection or amicus briefing.) I also didn’t see CDT’s brief on the docket, I believe there’s been a delay while their attorney is admitted pro hac vice. It’s also possible that a few other filings will crop up.

In any event, I’ve got my reading cut out for me. More thoughts here as I digest it all.

UPDATE: Yep, there’s more. Harry Lewis and Lewis Hyde—the would-be public-interest representatives in the lawsuit—have filed a motion to intervene, with full briefing. It seems like a long shot, in light of the court’s denial of EPIC’s motion to intervene, but they do seem prepared to fight it out. Their lawyer: Martin Garbus.

Your listing left out the Microsoft Brief, which is quite impressive,and the Weller/Sutro Objection which is very strong on protesting the proposed Authors Guild-Boni,Zack $30 million legal fee as being far excessive compared to similar class action cases.
The Arnold/Porter-Reback Brief for Open Book Alliance compares Google’s efforts to that of the Robber Barons, specifically, the cartel of John Rockefeller and three big railroads, which led to the outrage that gave rise to the Sherman Anti Trust Act, over a hundred years ago. They methodically document what they call a pattern of “misdirection” joined by the publishers and the Authors Guild, making false public statements that Google only wanted to include snippets in search ,while repeatedly, falsely,disclaiming any interest in selling e-books. The Open Book Alliance Brief decries the secret negotiations between Google, the Publishers and the Authors, and citing a statement by the Authors Guild at the October 2008 Press Conference announcing the settlement, dates the secret deal to allow Google’s schemes, to a meeting of the parties in 2006. It was this secret deal, the Brief asserts, that let Google continue to scan millions of books , while competitors like Microsoft were deterred from doing so by the threats of further lawsuits from the Authors Guild and the Publishers. Therefore, the Open Book Alliance argues, Google should be ordered to license its book data base to all comers on reasonable terms for all uses and applications. If the case results in this conclusion, it would have come full circle , twisting and turning on Google, in ways that Google,given its huge intellectual resources and presumed access to the country’s best and brightest legal talent, should clearly have forseen. In retrospect, Google should have stuck with its stated goal of establishing fair use for snippets, but instead went “a bridge too far” in seeking control over preview and full book contents, and I think that therefore, Google will not prevail.