GBS: Motion to Adjourn the Fairness Hearing!

The author and publisher plaintiffs filed a motion to adjourn the fairness hearing, together with a short supporting memorandum. Google does not oppose the motion. The executive summary:

  • The parties are renegotiating the settlement (with each other and the DOJ).
  • The issues are too complex to present a revised settlement by October 7.
  • They’ve requested a status conference for November 6 to discuss a future schedule, so they may have a revised settlement by then.
  • The parties don’t yet know whether the changes will require a renotice.

UPDATE: Instant commentary here.

This is very ,very significant news. and clearly an historic achievement due to the hard work of thousands of authors, lawyers and others involved in the publishing ,internet,library, and university worlds who have taken an interest and involved themselves in analyzing and commenting on the extraordinary proposed GBS. Clearly a new claim form, opt out period, and claim filing deadline would have to be provided based on the new settlement. The Jan 2010 claim filing deadline would have to be extended after a new notice period. Many, many objections were filed not just to the substance of the proposed GBS but to the notice and the due process compliance of the notice, in terms of its content and details of the actual service, by mail, e mail, publication, etc.I imagine these details will be provided at the November status conference. Everything will be a do over, for objectors, bloggers, authors,lawyers, the Judge, the EU, Congress, everyone. On their second try, the parties would be wise to include some of the leading objectors in their discussions, and not just the DOJ.

Won’t this require another massive round of briefing by all of the interested parties again?

It’s good news that the three parties have realized that they now have little chance of winning court approval. But we shouldn’t forget that the renegotiation remains restricted to same group came up with the much flawed settlement to start with and who continued until the very end to defend it. None of those involved were able to see beyond their own narrow interests to the greater issues that have been raised so effectively by outside parties.

The Authors Guild was, if anything, more vocal in defending the settlement than Google was. It’s more interested in getting Google to fund its dream of a Book Rights Registry than it is in the rights of authors here and abroad.

And nothing good will happen until Michael Boni, alleged “counsel for the author sub-class” is removed from this dispute. He and his colleagues are de facto employees of Google. They will get $30+ million dollars from Google if a settlement goes through and (I presume) nothing if it does not. That’s why Boni never raised any of the author-centered objections that have been raised by others. None of us as authors chose him to speak for us. None of us with any sense wants him to continue to do so.

Two changes are absolutely necessary:

  1. Forced opt-in has to go. The only parties to a settlement this complex and sweeping should be those who choose to join it in full knowledge of what it entails.

  2. Class action has to go. The original settlement proves that neither plaintiffs were looking out for the interests of publisher and authors. The AAP can only represent the few American publishers who are its members. The Authors Guild can only represent its 8,000 American authors, and then only if they agree. But neither has the right to speak, bargain or make deals for anyone else.

Without those two changes, Settlement 2 will face the same objections as Settlement 1. Even more important, it’ll keep us from undertaking the only solution to the issues of the digital age that’ll be valid. That’s negotiating amendments to international copyright treaties such as Berne that are fair to all involved.

In its first 90 years, Berne was revised eight times, an average of once every 11 years. It’s been thirty years since its last revision in 1979. That’s the root of our problem and it can only be solved by international negotiations.

We know from the hundreds of amicus and opposing briefs that everyone has a wish list of specific features of the original GBS that must be scrapped. I think the most likely and important changes include: l. Scrapping the blanket prospective release and immunity clause Google wanted for future copyright violations; 2. Withdrawing a license to Google for any “non-display” uses, continuing to reserve these to the authors or present publisher rights holders; 3. Ensuring the Registry has the same consent decreee mandates for nondiscriminatory blanket licensing as BMI and ASCAP; 4.Ensuring autonomy of governance for the Registry, and 5. Scrapping the pro Googel MFN clauses The economic terms also need to be reexamined, i.e. the 63%-37% Google rights holder split, and the $60/book damages clause.

C. E. Petit, as usual, has an interesting take on what’s going on:

‘I see this as a strategic attempt to keep other parties from horning in on the action. Many of the objections raised have concerned inadequate representation by the named plaintiffs — a far higher proportion than normal, and far more searching and detailed in scope. … Nonetheless, these children don’t want to share with the others… so they’re going to try and short-circuit the process.

If I were a particularly mean and nasty shark, already admitted in the Southern District of New York, with a particularly bloodthirsty client who provided better/more representation than the current named plaintiffs, I might file a motion that asked the judge to either hold the hearing as scheduled, limited to the adequacy of representation issue, or to reject the settlement and require appointment of new class representatives.’

The view from Google:

If there are a “few minor changes” to be made to Google’s settlement with groups representing authors and publishers, Schmidt said, “that’s a pretty good thing to do.”

“I don’t think we will make significant changes to the deal.” [My emphasis]

I wasn’t convinced by the plaintiffs’ argument. It is as if they want to go off and negotiate privately, but with DOJ included this time, and continue to ignore most of the class members.

They also seemed to be mainly concerned about resolving the issues DOJ raised. But there were a number of objections that were different from those of DOJ, and DOJ seemed to be hoping that the Court would give the parties more direction on “those aspects of the Proposed Settlement that need to be improved.”

It seems to me that it would make more sense to have all the objections heard now so that the court would be able to give the parties direction now, rather than have them come back with a revised agreement and have another whole round of briefs and such.

At any rate, being a class member who filed a notice of intent to appear, I thought it would be okay for me to send the judge a letter urging him to deny the motion to adjourn the October 7 hearing. So I emailed a letter to Judge Chin this afternoon using the e mail address we told to use to submit requests to speak at the hearing.

Procedurally, this seemed a bit casual to me, but so much in this case is so unusual, that I figured I might as well try it. (I can’t use the court’s electronic filing system, so I used what seemed like a reasonable alternative.) I did, of course, send copies to the parties’ counsel.