Irvin Muchnick, the lead objector in the Reed Elsevier case currently before the Supreme Court, has written an interesting letter to Attorney General Holder, arguing that the Elsevier case (about periodical publishers putting articles in electronic databases without explicit permission form authors) and the Google Book Search case have so much in common that they should be negotiated together. What, precisely, that means is somewhat unclear. He says:
My purpose is to advance the Government’s appreciation that the two cases are best discussed, prospectively and in the public interest, as a package.
I have no quarrel with that—I’m all about discussion in the public interest—but “discussion” of them both is already happening, and the DoJ has no particular legal role to play in pushing mere “discussion.
Muchnick then writes:
It is in that context that the Freelance respondent-objectors seek your good offices in broadening the scope of the negotiations in both cases.
If he means merging the negotiations so the two class-actions will yield a single settlement, this strikes me as a bad idea. In Fake Steve’s phrase: “It’s like taking the two guys who finished second and third in a 100-yard dash and tying their legs together and asking for a rematch, believing that now they’ll run faster.” Both settlements are intensely complex; they involve different copyrights, different media, and different uses. Smushing them into one is more likely to cause both to break down in irreconcilable differences—the exact opposite of Muchnick’s goal.
Perhaps he just means bringing more people and more perspectives into each set of negotiations. That’s probably not a bad thing, but there’s a limit to how far a class-action negotiation can go. Not to keep tooting our horn, but this is one thing that conferences like D is for Digitize can do well—air a lot of views, sort through multiple perspectives, and lay out the different issues that will need to be addressed.
Muchnick concludes:
For these reasons, the Freelance respondent-objectors request that the Government use its facilitating role in the renegotiation of the Google settlement, first and foremost, as a platform for broadening those negotiations. They should include the Freelance respondent-objectors, to be sure, but not only us; all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.
I think this is a worthy goal, and I’ve said similar things about class-action negotiations versus legislation, but I’m still trying to puzzle out what exactly Muchnick wants to have happen. A negotiation in which various other stakeholders must sign off on the deal for it to be accepted? A DoJ-brokered roundtable at which Bill Cavanaugh decides whether there’s a consensus or not? An expanded fairness hearing procedure in which Judge Chin presides over a mock legislative drafting session? Note that all of these are probably beyond the DoJ’s power to order. The DoJ can, I think, negotiate over whether it objects or not—just as anyone else can—but it’s hard to see what process Muchnick wants the DoJ to use its muscle to put in place.
In short, conversation, dialogue, and negotiation are good. But I’m not clear on how Muchnick’s proposal means to get us there.