In an unsurprising turn of events this week, Judge Chin denied the visual artists’ motion to intervene. I say “unsurprising” because this is the second time Judge Chin has denied their request. Their first request was denied summarily, so the motion to intervene was actually before Judge Chin as a request for reconsideration. And no, he hasn’t changed his mind.

This time around, he explained his reasoning in somewhat more detail, though. First up is his analysis of why intervention would be untimely:

The parties to this litigation have been negotiating and renegotiating a complicated settlement agreement for several years. In the last two months, the parties have begun working with the Department of Justice to revise the agreement to attempt to avoid antitrust problems, and they are due to re-file their new settlement proposal on November 9, 2009. The proposed settlement, if approved, would allocate rights to millions of textual materials. It represents thousands of hours discussion, compromise, and legal draftmanship [JG: sic]. Yet, the movants propose to intrude at the very end of this long process, and to add the question of millions of pictoral [JG: sic] materials to the equation. Intervention could “destroy [the parties’] settlement and send[] them back to the drawing board.” (citation omitted).

On one level, this has to be right. As I discussed in my analysis of agenda-setting in this class action, giving someone the power to propose a specific agreement is all but inherent in the way we handle class actions. If the ASMP feels that the settlement will cause them harm, the objection and amicus window is designed to give them an opportunity to be heard. Many of their arguments are properly characterized as objections that the settlement violates the public interest and should thus be rejected. Moreover, since the settlement wouldn’t bind the visual artists, the court correctly and repeatedly notes that they’re free to file their own lawsuit against Google.

In terms of timing, the court does talk about the years of negotiation and the parties’ interest in not being prejudiced by having this monkey wrench thrown into it. But when the chips are down, I read the opinion as saying that the visual artists should have moved to intervene when the initial settlement was announced:

As long as movants retain their right to bring their own lawsuit, they have not been harmed by this litigation, and they do not retain an automatic right to intervene a year after the proposed settlement agreement was filed. From the perspectives of fairness and efficiency, it makes more sense for the movants to file their own lawsuit than to be permitted to delay this lawsuit.

The other issue the court needs to deal with is the visual artists’ argument that they were entitled to be part of the final class, given that they were included in the class in amended (2006) complaint. As the court wrote:

The movants are incorrect: the broad class that was defined in the first amended complaint does not entitle them to intervene at this late date. “The braod language of a complaint does not vest in putative class members a right to be part of the class ultimately certified by the District Court.” Holocaust Litigation, 225 F.3d. at 202. The center of this litigation has always been copyrighted textual materials. I reject the argument that class counsel acted in bad faith in the way they defined the class because there are legitimate reasons for limiting the class to holders of textual copyrights. …

The holders of pictoral [JG: sic] copyrights are differently situated from the holders of textual copyrights. Frankly, in the context of an online database that is searchable using keywords, it makes sense to prioritize the rights to word-based material.

The Holocaust Litigation case cited by the court is reasonably on point. This was the lawsuit against Swiss banks for their complicity in the Holocaust. The original complaints were broadly drafted, but the $1.25 billion settlement covered only a class of those “persecuted or targeted for persecution by the Nazi Regime because they were or were believed to be Jewish, Romani, Jehovah’s Witness, homosexual, or physically or mentally disabled or handicapped.” A group of ethic Poles moved to intervene, but the Second Circuit denied their request. As it explained, “the evaluation of such a motion [to intervene] does not require a court to take into account the language of the original complaint.” And in a footnote, the court addressed the Poles’ argument that there was no coherent reason to include, e.g. Romani, and not also them:

Appellants draw attention to the Settlement’s inclusion of groups whose losses apparently do not form part of this estimate-that is, those who fall under the categories of Romani, Jehovah’s Witnesses, homosexuals, and the disabled-and suggest that it implies suspect motivations. See Appellants’ Brief at 25 (“[C]lass plaintiffs took the more expedient route of dropping some of the more numerous classes from the consolidated complaints in defining the settlement classes.” (footnote omitted)). The inclusion of these groups arguably calls into question appellees’ argument that ethnic Poles have been excluded because the Settlement amount does not reflect their losses. Nevertheless, we are not persuaded that appellants have been inadequately represented. Counsel for appellees explained at oral argument that the inclusion of these smaller groups represents a decision on the part of plaintiffs to include those groups treated “essentially indistinguishably from Jews” under the Nuremberg race laws. Putting aside the question of the parties’ motivations, we note that the groups in question presumably encompass far fewer claimants than the category of ethnic Poles (and certainly fewer than the broader category of persons persecuted on the basis of national origin, who would undoubtedly seek to be included if ethnic Poles succeeded in intervening). Under Rule 24 the inclusion of much smaller groups could well be warranted on the grounds that their ability to pursue their interest in the subject matter of this litigation would otherwise be impaired. Moreover, it would be up to class members-not potential intervenors-to challenge the Settlement’s allocation of funds. In any event, we discern no basis for questioning the motives of the class representatives or their counsel.

While the ASMP et al. are considering their options, with that precedent on the books, I don’t think they have much chance of success on appeal. I’ve seen suggestions that they should do so and then move for consolidation; I would think that, after this ruling, the last thing they would want would be to back in front of Judge Chin.

Those inclined to pore through Judge Chin’s language for tells as to his thinking on the settlement itself are encouraged to do so in the comments.

The sentence that leaps out at me is this:

Frankly, in the context of an online database that is searchable using keywords, it makes sense to prioritize the rights of word-based material.

If the GBS were purely about copyright issues in relation to an online searchable database of text - yes, one might see the judge’s point here. But it scarcely needs pointing out in the present forum that far the most contentious element in the GBS agreement mark one was a very ambitious scheme to circumvent copyright law to enable a massive publishing and bookselling enterprise.

Such a project, if pushed through, would inevitably impact professionally on photographers and illustrators, and in that context it simply doesn’t seem adequate to tell the visual artists that ‘The proposed settlement does not concern the rights to their pictoral materials’.

Judge Chin seems to be talking as though what is at issue in the GBS is solely the development and use of the book database as a searchable index. So what does one make of that?

Gillian: I also thought that language stuck out. Obviously, the Settlement anticipates more than a database for keyword searching. It’s a platform for selling digital books as well.

The photographers may have weak case for the other reasons Judge Chin states (e.g., attempting to intervene too late) but to say, essentially, that the photos don’t really matter seemed to me a curious opinion for the judge to take.

I agree with Mary M. This predicament confirms the failings of class action litigation to deal with the issues of e publishing,etc. Now, its a rare book that does not have photos and illustrations, and in fact Google did scan every page including images in the University Library collections,and these images are already in the database. Of course, the rights to many are controlled by Getty Images and Corbis(i.e. Microsoft) and Google is trying to side step confrontations with these powerful players. But the utility of these books is seriously degraded without the photos and illustrations. History books need their maps, as one glaring example. So what Google Book is getting, without the maps and photos and illustrations, is a degraded product vis a vis the print edition, again explaining why e books are worth less and should cost less and do cost less than the print version.

Another reason for the judge’s sentence about “word-based material” seems to jump out is that, in fact, the settlement agreement does not exclude all visual artists & photographers. The settlement specifically includes holders of copyrights in “children’s Book illustrations” in the class.

I don’t know how this provision got into the agreement, but my guess is that it has something to do with the fact that one of the Authors Guild class reps is a childrens book writer. But the fact that the settlement drafters did not bother to define “children’s Book” suggests that they were not thinking much about visual artists.

What I find most discouraging about this case is that very few children will benefit even if the settlement is approved. Google loves to tout statements arguing that this settlement will give disadvantaged schoolchildren the same access to the same materials as students in exclusive private schools. But that is just not true, because Google has not agreed to give free access licenses to public schools, only to public libraries. Aside from the fact that many children do not get into public libraries, the full Google collection will have a lot of material that is inappropriate for children in it; so neither librarians nor parents are going to want to let children use the free access computers in the libraries.

I realize that my particular gripe about the settlement does not have the intellectual interest of the anti-trust and IP concerns. Nonetheless, I think that there is something outrageous about the idea that Google is trying to create (as Sergey Brin put it) “a library to last forever” but no one — most of all Google — seems to be giving any thought to putting a children’s section in this library.

‘The settlement specifically includes holders of copyrights in “children’s Book illustrations” in the class.’ - yet so far as I know, none of the class representatives is an illustrator of childrens’ books.

Surely that is a procedural irregularity?

The inclusion of children’s books in the Google Book data base in which search results and preview are accompanied by advertising raises another very controversial issue over the quality and appropriateness of advertising to children - remember Wittle’s Channel One free to classrooms that had Maybeline ads for third and second graders. And advertisers are fighting to get into K-6 textbooks-which one? I believe its ones like Coca Cola, Nike, all the usual big names. While a real life library is usually ad free, Google Book will not be.