GBS: A Note on Terminology

I haven’t always been good about this in my blogging, but let me try to clear up some terms that can be used to describe the various filings around the settlement.

I prefer to describe this as a suit between named plaintiffs (the Authors Guild, the AAP, five authors, and five publishers) and Google. The plaintiff class includes everyone who holds a copyright in a book, subject to various exclusions. I don’t like to say just “plaintiffs” because it’s ambiguous between these two possibilities. If I want to add Google to the mix, my preferred term for the named plaintiffs and Google together is settling parties, which emphasizes their role in jointly proffering the proposed settlement. Parties is the general legal term for those who are actually “in” a lawsuit and will be bound by its outcome.

The judge can either approve or reject the settlement. If he rejects it, the settling parties (and no one else) are allowed to modify it and submit it again for approval. Note that this may give the judge a practical modification power: he could reject the settlement while saying what changes would make him willing to approve it. But formally, the judge’s choice is only to approve or reject.

Members of the plaintiff class had three choices: * They could of course do nothing, which effectively meant staying in the class and being bound by whatever happens.
* They could have chosen to opt out, which removes them from the class and means they are not bound by the settlement. Note that they did not need to supply any reason for an opt-out; they could just check the appropriate boxes on a form sent directly to the settlement administrators. Some members did explain their choices, either in letters to the court or in public statements (e.g. this FAQ from Thomson Reuters Legal). * They could have filed an objection with the court. Formally, objectors are still part of the plaintiff class but disagree with the choices made by its lawyers. Objections contain legal arguments telling the court why it should reject the settlement.

Some objections took the form of letters to the court; others were briefs. A letter is just what it sounds like; it’s mailed or faxed directly to the court and is less formal. A brief is the all-purpose format for legal arguments; it has a more rigid structure and needs to be officially “filed” through the court’s electronic system. Letters tend to run between one and ten pages, briefs from ten to fifty. Briefs are more typically written and filed by lawyers, letters by individuals or organizations themselves, but there are exceptions in both directions.

Some non-class members also want to influence the judge’s decision. Most of them do so as an amicus curiae, which is Latin for “friend of the court.” An amicus is not a party, and the court is free, if chooses, to completely ignore what the amicus says. An amicus could choose to support (or be “in favor of”) either side in the suit, or neither. It’s helpful to say that some of the amici here support the settlement, while others oppose it. (It’s best not to say that they “object,” as that confuses the issue of whether they’re amici or objecting class members.) Like objectors, amici can express their views in either a letter or a brief.

The final remaining category of participants contains those non-parties who what to become parties—either because they hope to obtain benefits only available to parties, or because they want to force the judge to consider and respond to their arguments. They can file a motion to intervene in the lawsuit; if it’s granted, they become parties.

James, Your suggested distinction between a “letter” and a “brief” is not meaningful in New York federal practice. Lawyers file things in letter form in the federal courts of New York (and New Jersey, which I suspect caught this bug from NY practitioners) all the time, simply as a matter of local practice, that would have to be done in the form of briefs (or “memoranda of law”) in most other jurisdictions.

Sigh. Yes, you’re right. I was trying to be a good descriptive anthropologist: here’s what the tribe of lawyers I’m observing does, and here’s a distinction they appear to make. But I may have made too much out of it, given that the distinction exists mostly in their heads and social practices, rather than being a creature of written law the way the other distinctions I describe in here.