The Laboratorium
October 2009

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GBS: NYT on the Chinese Brouhaha

Sharon LaFraniere, In China, Objections to Google’s Book Scans, New York Times, Oct 31, 2009, at B4:

A long-running dispute over Google’s efforts to digitize books has spread this month to China, where authors have banded together to demand that their works be protected from what they call unauthorized copying.

Two Chinese writers’ groups claim that Google has scanned Chinese works into an electronic database in violation of international copyright standards. The organizations are urging China’s authors to step forward and defend their rights.

Plenty of interesting tidbits. For example, some of the outrage seems to be based on simple misunderstanding of what’s happening:

A few Chinese authors have suggested that Google has not only scanned in their works, it has published selections of them online without obtaining permission. No such cases could be immediately confirmed, and at least a few authors appeared to be mistaken about whether their books could be viewed.

On the other hand, it doesn’t sound as though the official notice program has been terribly effective in China:

But most Chinese authors learned of Google’s efforts only this month, after writers’ groups were notified of a potential class-action settlement between Google and American authors and publishers. Some Chinese authors discovered that Google had obtained their works from libraries in the United States and scanned them into its database.

Note that “this month” means October, i.e., wholly after the extended opt-out and objection deadline. This is yet another reason why the EFF’s concerns about the re-notice are utterly critical.

GBS: Sonnenschein CLE Report

Benjamin Burge, a 2L at New York Law School and a member of the PIBSI team, filed the following report on a recent CLE event in New York:

On October 22, 2009, Sonnenschein, Nath & Rosenthal LLP held a CLE meeting on the Google Book Search lawsuit and proposed settlement entitled, “Google Book Settlement: Past & Future.” The presenters were Deveruex Chatillon, the former General Counsel at Scholastic and now partner focusing on content litigation; Katherine Funk, a partner in the antitrust section; and Reid Ashinoff, a partner focusing on class-action lawsuits.

Chatillon introduced the panel and introduced the basics of the lawsuit and settlement to the audience. After the lengthy introduction, Ashinoff discussed the Rule 23 implications of the proposed settlement. It must be noted, as it was by Ashinoff and others, that this discussion could potentially be mooted by the yet-to-be-filed amended settlement. With that caveat, Ashinoff focused on the huge divide in relief granted in the proposed settlement between in-print and out-of-print/orphan works. He noted that this is likely due to the fact that the class representatives were the original plaintiffs, and were getting the best outcome for themselves. He reasoned that as a necessary result, the settlement needs to better represent all of the classes of works which it tries to encompass. To accomplish this, the classes must either be re-defined, with the inclusion of at least one additional class, namely orphans, or needs to remove works that are currently orphaned from its scope. A further remedy could be to granting orphans the same rights as in-print holders once they become identified. Ashinoff noted that implementing these could be extremely difficult, and that therefore this settlement might, like asbestos litigation, be an area better suited for Congressional attention than private suit.

Ashinoff then discussed the potential problems with both notice of the settlement and the release granted to Google therein. With regards to the release, he supported the same conclusion that many others have noted, that as a release is supposed to be either related to the complaint or a factual predicate, this settlement’s release is so far-reaching in scope that it may be altered by the court. Further, he discussed how there have been multiple complaints about the notice period, namely that the notice was inadequate as it was only in English, that it was not served on all potential parties, and that it the notice period was insufficient. One of his suggested remedies was that Google be forced to have a banner on its home page for a period of years giving notice, which was a hit with the crowd but will likely not be with Google.

Funk then spoke about the settlement’s antitrust implications; the most notable being that it seems to give Google an exclusive right to the orphan works via the Registry’s licensing capabilities. The easy solution to this issue is to allow the Registry to license any book that has been digitized. She then spoke about the potential price-fixing scheme presented in the settlement’s algorithmic pricing and noted how it was different from BMI and ASCAP, which have separate bilateral agreements with rights holders. Finally, Funk noted that even if the court does approve the settlement, the DOJ is not prevented from stepping in to stop or alter it, either immediately or in the future. Furthermore, competitive vendors to Google are not bound by the settlement, and could file a Sherman Act § 2 complaint against either Google or its vendors for antitrust violations.

Finally, a question from the crowd asked Ashinoff how he might counsel Google to deal with the orphan works issue from a class-action settlement, and he noted that it might actually be a feasible option for Google to remove orphans from the settlement, use these works, and just run the risk that the owner might show up. As by definition the rights holder of an orphan cannot be found, if no one ever has the ability to hold Google accountable for this plan of action, it might be the easiest path.

I Aten’t Dead

It looks like Facebook doesn’t actually check too closely when users tell it that someone else is dead and should have their Facebook account “memorialized” (i.e. locked). Simon Thulbourn isn’t dead, but Facebook thinks he is.

GBS: D is for Digitize Video Is Online

Whoops. I thought I’d posted this last week, but it looks like I hadn’t. The program page has full on-demand streams of all the panels and presentations from D is for Digitize. We also have a podcast version on iTunesU, and plain old MP3s if that’s the way you roll.

GBS: My Media Reporter Interview

I was on local public access again on the Media Reporter show, this time talking about Google Book Search. There was a lot of ground to cover, so it was a two-parter:

Part I

Part II

If the tenses seem strange, that’s because we taped the episodes about a month ago, not knowing what would happen as the scheduled fairness hearing approached.

GBS: Two from Chu

Lynn Chu, literary agent and outspoken opponent of the proposed settlement, has a pair of posts about it that make me glad I’ve never had to go up against her in a negotiation. The implicit criticism is stinging.

Frequently Asked Questions about the Google Book Settlement

Owner Account Options (which Google Ought To Have Provided)

Bonus: don’t miss her proposed redrafted contract, either.

The Prestige I give it 4 stars

It’s a Christopher Nolan movie: a cleverly constructed puzzle, with a smart screenplay and good acting—and it’s dark, dark, dark. The central plot twist is so twisted that I wondered whether the movie would have the courage to follow through on it. It did.

GBS: EFF on the Revised Settlement Procedures

A large coalition of objectors and amici led by the EFF have sent a letter to the court requesting a set of procedural protections once the parties present a revised version of the settlement:

  • A chance to comment on the parties’ proposed schedule for opt-outs and objections and the fairness hearing before the court issues an order for preliminary approval.
  • Required translations of the original settlement and the amendments.
  • “Robust” notice to the class of the changes.
  • No restrictions on the scope of objections or comments.
  • An explicit assurance that any responses already filed need not be filed again.

GBS: Little Trouble in Big China?

There’s more from the Wall Street Journal on the controversy in China. One possibility to explain the recent confusion is that U.S media have may been picking up on somewhat inaccurate reportage in the Chinese media.

Thursday, journalists received an updated statement from the company saying the Chinese books in its library are available only in snippets, unless use of the full texts is approved by rights holders. Yet somehow, state-run newspaper China Daily seems to have taken this to mean Google plans to make a new settlement with Chinese authors. Today’s headline read, “Oodles of woe for Google,” and the lead paragraph says the company “may draw up a new statement to put out its copyright fire in China, according to a statement.”

Is it possible that China Daily got a different statement than other media, or is it merely putting another spin on Google’s comments? In its article, the paper uses quotes that were in Google’s initial, boilerplate statement, which certainly did not seem to imply any new settlement.

Or maybe it’s the Chinese media that’s accurately reporting on the revisions to the settlement and the Wall Street Journal that’s confused? Here is the China Daily story.

GBS: Around the Internets

A couple bits of flotsam from elsewhere:

  • Opposition to the settlement is brewing among Chinese authors, according to the Wall Street Journal (and see also this article in PC World.) The article quotes one representative of the China Written Works Copyright Society society as saying that authors could file lawsuits against Google in China; it also cites deadlines of June 5 to make claims and January 5 to file lawsuits. These news stories are at the wrong end of a game of telephone; there’s clearly something interesting happening in China, but the details are too garbled to know exactly what.
  • Adam Hodgin has a blog post arguing that “Google is Going for It”; based on Google’s game face and the DoJ’s incentives, he expects small changes to the settlement followed by approval.

Dust Jacket Copy of the Day

George P. Fletcher, The Bond (Hart Publishing 2009):

Adam Gross, philosopher-cum-lawyer, teaches at an Ivy League law school in New York. Good looking, cultivated, bohemian, he was once considered the rising star of his faculty, but that was a decade ago, and times have changed. Doing the job he always wanted, shaping eager, young, minds, showing them what it takes to be a lawyer, Adam has to face the truth that his style is no longer what the students pay for; and his Dean is getting worried about the rising number of complaints. It doesn’t help that he is about to start sleeping with the Dean’s wife…Faced with a struggle for survival, sandwiched between headstrong students and colleagues eager to see him cut down to size, Adam knows no other course than to keep teaching law as he believes it must be taught — as a global, complex and multi-faceted phenomenon in which American law is just one part of the picture. In a world in which the old certainties have been swept away, in which torture happens on our doorstep, and inequalities multiply, more than ever Adam wants his students to understand that they hold the key to a better, more just, future. This novel by acclaimed Columbia Professor of Law, George Fletcher, is at one and the same time a tale of university life and a primer for anyone wanting to understand what studying law is really like. By turns provocative, challenging, shocking and amusing, THE BOND will change forever the way law students (and their teachers) think about the law.

GBS: A Brief Statement of Principle

A structured, comprehensive settlement of the Google Book Search case offers enormous potential benefits to society. To the best of my understanding, however, the initial proposed settlement could not be defended on the basis of current law. The class-action device being used to present the settlement has never been used in this dramatic a fashion before.

Laws can change, and in our common-law system, courts can extend the law in the course of deciding cases. But blessing the procedural mechanisms used by this settlement carries enormous danger of abuse, not only in this case but also in future cases that might cite it as precedent. Thus, if the legal system is to approve the revised settlement, it must do so on the basis of a principle that (a) justifies the proposed arrangement, (b) applies to others who are similarly situated, and (c) has recognizable, enforceable limits. That principle is what we should be evaluating, not just the settlement itself.

I hope that such a principle exists. I do not believe that the parties have yet provided one. But the rule of law demands no less.

GBS: A Little on Future Claims

One of the precedents that’s been bouncing around in the Google Books space for most of the past year is Uhl v. Thoroughbred Technology and Telecommunications, Inc., 309 F.3d 978 (7th Cir. 2002). Michael Boni cited it at the spring Columbia conference, and it makes appearances in a number of the briefs responding to the initial proposed settlement. Uhl is a key case for the settling parties; they’ve pointed to it as a case that releases future claims, not merely past ones. Since so much of the Google Books settlement involves future claims, this is obviously an important point. Uhl turns out to be an interesting case in its own right, with some interesting parallels to the Google Books litigation.

The basic story is simple. T-Cubed wanted to install fiber-optic conduits along an old Norfolk Southern right-of-way. The property rights along railroad rights-of-way are in many cases highly ambiguous; those who granted easements to the railroad did so using various different forms of legal documents, some of which arguably might have given it the right to use the right-of-way for non-railroad purposes, and some of which arguably might not have. There were some 58,000 individual property owners affected, in at least nine states, and the records of those old grants are in many cases lost. (Sound familiar yet?)

T-Cubed claimed it had the necessary rights; Timothy Elzinga, one of the adjacent landowners, disagreed. But he didn’t sue. Instead, he entered into negotiations with T-Cubed for a structured settlement. The suit, the motion for class certification, and the proposed settlement were filed simultaneously. (Sound familiar yet?)

Under the proposed deal, the landowners would become shareholders in a new company, Class Corridor. It would collect money from T-Cubed based on its success in selling fiber to others, and, with a little bit of luck, pay out to the landowner-shareholders. In the other direction, the landowners would be required to grant easements to Class Corridor, which in turn would convey them to T-Cubed. (Sound familiar yet?)

Complicating matters, T-Cubed would lay fiber only along one side the tracks, but hadn’t yet chosen the side. It therefore promised to pay an additional $6,000 a mile to the landowners on the Cable Side, but nothing up front to the landowners on the Non-Cable Side. This created an obvious division within the class, which led to disputes about fairness to all subclasses. (Sound familiar yet?)

Now for the “future claims” angle. Here’s the case’s complete discussion of the issue:

This one, which Mason raised at oral argument, also goes to the court’s jurisdiction: she claims that the claims of the class members are non-justiciable at this stage of the proceedings. To resolve this justiciability argument, we must look at how the class is defined. If, as Mason argues, the class’s claims are future claims, largely hypothetical at this stage, then the claims may not be ripe. If that were true, we would have to vacate the order below and our analysis would end here.

The class in this case has some similarities to certain toxic tort cases, insofar as the eventual harm to the class members was uncertain at the time the complaint was filed and at the time of the settlement. But the similarity is not complete, and in the end it tends more to support the plaintiffs than to undermine them. In many toxic tort cases, uncertainties abound: which class members were exposed to the substance? who has suffered compensable injuries already? who may never suffer injuries? But if the risk itself is immediate, contingent claims based on that risk are justiciable and are routinely addressed both in toxic tort settlements and in bankruptcy proceedings. In this case, parts of the controversy are already unquestionably ripe: the class members’ titles have already been slandered, and T-Cubed will need to enter the property at least for purposes of its surveys. The only thing (important though it is) that is not known is whether any particular owner will be Cable Side or Non-Cable Side (or both). Furthermore, at the time of settlement, the slander claim was justiciable because some harm had already occurred. This is enough to permit the court to address the entire suit, including the claims for trespass and the injunction. On these facts, those claims are in no way hypothetical; their immediacy and their relation to the slander claim is enough to permit the court to address the entire controversy.

This is particularly true in light of the fact that we are addressing a settlement. The fact that each individual class member did not know the full extent of the burden she would suffer is unimportant. T-Cubed claimed rights to all of the property, and the settlement required all class members to provide T-Cubed with an easement. (citations omitted)

The specific issue before the court was jurisdiction: that is, did it have the power to hear class members’ claims at all? If you believe in slander of title, then the answer has to be “yes.” As soon as T-Cubed made its sweeping claim that it actually had the right to install the conduits, each of the 58,000 property owners could have individually sued it for a judgment that, no, it didn’t. At that point, the “risk” that T-Cubed would trespass (by surveying and laying the conduits) was “immediate,” since those were precisely the rights that T-Cubed already claimed to own.

I have a harder time seeing this case as saying anything about “future claims.” First, the conduct that T-Cubed was ultimately allowed to engage in was only the conduct it initially claimed it had a right to engage in. Thus, the settlement didn’t authorize anything in excess of what the plaintiffs were nominally suing to stop. Contrast the Google Books settlement 1.0, which would have authorized Google to make all sorts of uses it had never claimed a right to make and that weren’t mentioned in the complaint. To the extent that there is a question over whether the Authors Guild settlement releases all arise from a common “nexus of operative facts” as the causes of action alleged in the complaint, Uhl doesn’t provide useful guidance.

Second, the Uhl court never considered whether allowing T-Cubed to lay cable was problematic under Rule 23. Jurisdiction to hear the claims is a very different question than propriety of a settlement under Rule 23(e). You don’t need Uhl to establish that theres’s a live case or controversy between the Authors Guild plaintiffs and Google. Google’s actual scanning of millions of books and announced plans to scan many more are probably sufficient to create jurisdiction on a class-wide basis.

The Uhl decision does contain a Rule 23 discussion of whether the settlement is fair, reasonable, and adquate. That discussion, however, focuses on whether the class was internally conflicted (the Cable Side / Non-Cable Side issue) and whether the Class Corridor company offered sufficient compensation and was permissible as a structured settlement. The court’s conclusions that the settlement complied with Rule 23 do bear on the Authors Guild case: you can see a precedent for blessing the Registry in the court’s discussion of Class Corridor. But the court never considered the “future claims” issue as a Rule 23 question.

And third, even to the extent that the Uhl settlement involves future conduct, there’s a sense in which it doesn’t involve future claims based on that conduct. The plaintiffs were required to convey to T-Cubed a property right—an easement—that renders the issue of future claims irrelevant. Once T-Cubed has the easement, it can survey and lay cable to its heart’s content. The Google settlement, by way of contrast, is designed not to convey any property rights to Google or the Registry. It merely includes releases: promises not to sue Google based on various actions it may take.

Now, argubly, conveying a full-fledged easement posed an even greater burden on plaintiffs than simply giving T-Cubed permission. Or, arguably, property law simply reifies the permission into the easement, so that there is essentially no difference. But still, to property and intellectual property lawyers, the distinction between a transfer of a property interest and a mere license is a fundamental question of characterization. The settlement’s proponents have emphasized that it falls on the “license” side of the line (and thus doesn’t trigger the formalities or expropriation rules of the Copyright Act). That choice creates a potentially significant distinction between Uhl and Authors Guild.

My bottom line is that Uhl is a significant precedent in favor of the proposed settlement—but probably not on the class action issues at the center of the present controversy.

GBS: This Week in Your Favorite Lawsuit

  • The coalition of visual artists headlined by the American Society of Media Photographers (ASMP) is actively litigating its motion to intervene. The plaintiffs filed a letter objecting to the motion, and the ASMP filed a brief in reply. I’ve previously expressed skepticism about the ASMP’s motion, but I thought they got the better of this round of briefing.
  • The other remaining group of would-be intervenors—Lewis Hyde, Harry Lewis, and Nicholas Negroponte—opted instead to appeal the denial of their motion to the Second Circuit.
  • Over at the Public Index, we’ve posted the transcript of the October 7 status conference. No surprises there, but it’s useful for getting at some of the nuances of what was said.

Shepard Fairey, Doofus

Apparently, Shepard Fairey lied to his own lawyers about which photograph he based his iconic Obama “Hope” poster on. He’s still an amazing artist, and I still believe he has a good fair use case, but man, you do not do that. The Stanford Fair Use Project, which had been representing him, has asked the court to let it withdraw as his lawyers. Good for them for taking the case, and good for them for walking away now.

GBS: Scenes from the European Backlash

Andrew Albanese, Frankfurt Book Fair: Europeans Play the Moral Rights Card Against Google Settlement, Publishers Weekly, Oct. 16, 2009:

There’s been a simmering anti-Google sentiment at this year’s Frankfurt Book Fair, no doubt connected to European objections to the Google Book Search Settlement. And on Friday that simmer reached a boil, as the deal faced harsh—at times, puzzling—criticism at a registration-required panel on “European and American Positions Towards the Google Settlement.” …

For his part, Sarnoff conceded that negotiators of the deal did not anticipate the “doctrinaire” backlash in Europe over moral rights, telling the audience that the parties genuinely thought they were doing something that would benefit everyone. He said that European works may indeed have to be removed from the settlement. (emphasis added)

GBS: A Little Brin-Snark

There’s a letter today in the New York Times, responding to Sergey Brin’s op-ed from last week:

To the Editor:

Re “A Library to Last Forever” (Op-Ed, Oct. 9):

Sergey Brin, the co-founder of Google, writes, “Today, if you want to access a typical out-of-print book, you have only one choice — fly to one of a handful of leading libraries in the country and hope to find it in the stacks.”

Fly??? I’m pretty sure I can e-mail a reference librarian and ask her to check holdings before I do anything so drastic as fly. Hasn’t this guy ever heard of the Internet?

Lauren Baratz-Logsted
Danbury, Conn., Oct. 9, 2009

The writer is a novelist.

I wrote in, too, but they picked the right letter.

Hat tip: Michael Froomkin

GBS: Chris Thompson on the Berkeley Dissidents

Chris Thompson has a long article in the East Bay Express, The Case Against Google Books that prominently features the work of Peter Brantley, Pamela Samuelson, and Geoffrey Nunberg in pulling together a coalition in opposition to the settlement.

Rachel DeLetto’s Free Sampling in the NYSBA Entertainment, Arts, and Sports Law Journal

Close to a year ago, one of my students from Copyright, Rachel DeLetto came to me with an idea for an independent study topic. She was precocious—one of a very small group of 2Ls who took Copyright in a room full of 3Ls—but she’d more than held her own, and now she wanted to delve more deeply into a copyright topic. Specifically, she was interested in Girl Talk’s remarkable mashups, and she wondered why the metaphorical copyright police hadn’t yet shut him down. That was the start of her project, which evolved into a copyright analysis of the substantial-similarity, licensing, and fair use issues large-scale mashups like Girl Talk’s raise.

I’ve had good and bad experiences supervising student papers; this was one of the best. Rachel dug in hard, several times expanding the project as she decided there were additional issues she needed to cover. She outlined carefully, gave me section drafts with reassuring regularity, and—those who have taught will recognize how rare this is—was able to edit and revise her work with a careful eye. To top it off, her writing style was both clear and lively; she cleanly analyzed the legal issues in a voice that was recognizably her own.

I mention all this because the paper has now been published in the New York State Bar Association’s triannual Entertainment, Arts, and Sports Law Journal. The final title is “Free Sampling: Why the Copyright Law’s Rigid Sampling Regime Is Incompatible with Contemporary Creativity,” and as you can see, the paper has grown beyond just Girl Talk. The best part about teaching is seeing students grow in knowledge and maturity, and eventually take wing, and Rachel’s road from the front row of my Copyright class to published, licensed lawyer is a great example of why I love this job.

GBS: Pam Samuelson: Google Books is Not a Library

A reply to last week’s Sergey Brin op-ed:

Brin and Google’s CEO Eric Schmidt have also been saying publicly that anyone can do what Google did—scanning millions of books to make a corpus of digitized books. They perceive Google to have just been bolder and more forward-looking than its rivals in this respect. But this claim is preposterous: By settling a lawsuit about whether scanning books to index them is copyright infringement or fair use, Google is putting at risk the next guy’s fair use defense for doing the same. And if one of Google’s rivals aims to develop a commercial database like GBS when it starts scanning, it won’t have a fair use leg to stand upon. Nor is there any reason to believe that any lawsuit against a rival could be settled on comparable terms to those Google has obtained in the current deal. The DOJ has urged the parties to find some creative ways to allow others to obtain a comparable license from the settling class of authors and publishers.

GBS: Wired: Google’s Abandoned Library of 700 Million Titles

This one has been making the rounds; Google’s USENET archive has serious search and usability issues.

GBS: Clive Thompson on the Brin Op-Ed

The title really says it all.

CliveChris Thompson, Sergey Brin Blows Smoke up Your Ass, Slate, Oct. 9, 2009:

But a Xerox machine could make the same boast; we don’t give it the right to exclusively negotiate royalties with authors who may not even know their works are being reproduced. Even though Google didn’t set out to hold a monopoly on millions of books, that’s what it ultimately tried to acquire. And Brin’s effort to minimize the barriers his rivals face to replicate Google’s archive is just insulting.

D is for Done

Thanks to all who organized, helped, attended, or watched.

I do not expect to be back online for some time.

GBS: Sergey Brin Op-Ed in the NYT on Google Books

I wonder if this means he’ll put in a surprise appearance at D is for Digitize? Probably not, but a man can hope.

On the key competition point, he writes:

Others have questioned the impact of the agreement on competition, or asserted that it would limit consumer choice with respect to out-of-print books. In reality, nothing in this agreement precludes any other company or organization from pursuing their own similar effort. The agreement limits consumer choice in out-of-print books about as much as it limits consumer choice in unicorns. Today, if you want to access a typical out-of-print book, you have only one choice — fly to one of a handful of leading libraries in the country and hope to find it in the stacks.

I wish there were a hundred services with which I could easily look at such a book; it would have saved me a lot of time, and it would have spared Google a tremendous amount of effort. But despite a number of important digitization efforts to date (Google has even helped fund others, including some by the Library of Congress), none have been at a comparable scale, simply because no one else has chosen to invest the requisite resources. At least one such service will have to exist if there are ever to be one hundred.

If Google Books is successful, others will follow. And they will have an easier path: this agreement creates a books rights registry that will encourage rights holders to come forward and will provide a convenient way for other projects to obtain permissions. While new projects will not immediately have the same rights to orphan works, the agreement will be a beacon of compromise in case of a similar lawsuit, and it will serve as a precedent for orphan works legislation, which Google has always supported and will continue to support.

I’m not going to respond to his sloppy conflation of Google’s financial and technical investments in the project with the rather more questionable legal wizardry of the settlement. Executives are rarely careful about the details, even utterly critical ones. Trying to engage with them on such things is like trying to wrestle a swamp. The op-ed is a piece of rhetoric, and has to be accepted as such. (The “unicorns” part is a nice touch; it goes up there with “broken toothpicks” and “spoiled milk” on the list of unlikely things that the orphan books have been compared to.)

What is truly strange, though, is that Brin is giving a ringing defense of the settlement as it now stands. Did no one on the Google Book Search team forward him the memo about renegotiating the settlement in light of the antitrust concerns?

GBS: Reed-Elsevier Oral Argument Transcript

The Supreme Court heard the Reed-Elsevier case—another massive copyright class action settlement—today. The outcome there could, depending on how it’s written, exert some influence on the Google Book Search case. If nothing else, it will instantly become the leading Supreme Court guidance on the intersection of class actions and copyright.

Here’s the transcript of the oral argument.

There Will Be Webcast

Thanks to NYLS’s hardworking A/V team, D is for Digitize will be webcast live on Friday and Saturday. Of course, we’ll also be posting the video files on the conference web site afterwards.

GBS: Status Conference Status

The status conference was brief, but the courtroom was packed. Every available seat was taken, and some would-be attendees couldn’t fit inside. It was a brief, fairly efficient proceeding. The highlights:

  • Chin asked the parties how they planned to proceed. Michael Boni, speaking for them all, said they hoped to offer an amended settlement in early November, with a final fairness hearing in late December or early January. This is a very aggressive schedule, and it puts to rest my theory that the parties were stalling for time.
  • Judge Chin said that schedule was agreeable to him. He specifically set November 9 as the new date for submission of the amended settlement. He said that a delay of many months “would not be acceptable to the Court.”
  • The parties plan to renotice, but with an abbreviated period. They expect the supplemental notice will cover only the amendments, and that objections will be confined to the amendments. There will be a fresh opportunity to opt-out or to opt-in. Judge Chin indicated his general approval of this plan. This is a significant limitation
  • Boni indicated that the amended notice would largely explain additional “benefits” to the class. That could be interpreted as his lawyerly spin on the changes, an indication that about their scope, or both.
  • Boni said that the parties were working daily to negotiate the amended settlement in communication with the DoJ and “in tandem” with the DoJ. William Cavanaugh from the DoJ then spoke briefly, at Judge Chin’s request, to say that while it was having ongoing discussions with the parties, it had not yet seen the proposed amendments.
  • There’s currently a January 5, 2010 deadline for copyright owners to file claim forms for cash payments; in light of the schedule slippage, the parties expect to extend that deadline until June 5, 2010.
  • Judge Chin asked about the state of discovery, in case the settlement talks break down. Daralyn Durie, representing Google, said that it would be “premature” to address that issue. Boni indicated that the parties had conducted document production and review running to “millions of pages,” but had not conducted any depositions.
  • Judge Chin asked about ways to make the submission process easier. The court has a single scanner, and spent four straight days scanning the hard-copy submissions. The Clerk’s office, however, is concerned about asking non-lawyers to use the electronic filing system. Judge Chin asked about the possibility of an email address for electronic submission of comments and objections, possibly through the settlement administration site. Boni said that the settlement agreement requires that objections be served on the parties, so they would be happy to take on the scanning burden.

Judge Chin is trying to move this case, and his overall attitude seemed to be that he wants as clean a record as possible, and soon, so that he can act on it. That would incline me to think that he is hoping to be able to approve the settlement, or at the least to kick some of the legal issues upstairs to the Second Circuit for its guidance. His desire to make the filing process online—thematically appropriate, in this case—is appealing, but I fear that there is such distrust of the parties and of class counsel in this case, that leaving the processing of objections in their hands will not be a palatable solution to many who have concerns about the settlement.

In any event, we are now all set for continuing drama throughout the fall.

GBS(ish): Orphans Take Manhattan

The City Bar is sponsoring an evening event, “Lost & Found: A Practical Look at Orphan Works,” 6:00 PM – 8:00 PM, on Tuesday, October 20. They’re putting a different spin on the orphan issues, with a focus on images. The lineup of panelists is great. I teach at the time, unfortunately, or I would be there in a heartbeat.

How should the law treat “orphan works”? Please join us as we discuss proposals that would enable copyrighted works to be used when their owners cannot be located to obtain necessary permissions. What should be the obligations of potential users with respect to searching for copyright owners? How should infringement claims be handled if a copyright owner emerges? Do different types of copyrighted works present unique issues? What roles might registries and recognition and detection technologies play? Our speakers will address these and related questions, focusing on orphan images.

Speakers: Brendan M. Connell, Jr., Director and Counsel for Administration, The Solomon R. Guggenheim Foundation

Frederic Haber, Vice President and General Counsel, Copyright Clearance Center, Inc.

Eugene H. Mopsik, Executive Director, American Society of Media Photographers

Maria Pallante, Associate Register for Policy & International Affairs, U.S. Copyright Office

Charles Wright, Vice President and Associate General Counsel, Legal and Business Affairs, A&E Television >Networks

June M. Besek, Executive Director, Kernochan Center for Law, Media and the Arts

This program is free and open to the public; registration is not required.

Co-sponsored by the Art Law Committee (Virginia Rutledge, Chair) and the Copyright and Literary Property Committee (Joel L. Hecker, Chair) of the New York City Bar Association, in conjunction with Columbia Law School’s Kernochan Center for Law, Media and the Arts.

GBS: Use Well the Days, Privacy Edition

In other news today, I signed on to a joint letter spearheaded by the EFF, recommending that the parties use the renegotiation process to improve privacy protections in the revised settlement.

Congratulations to Judge Chin on his nomination to the Second Circuit!

GBS: The Public Hearing, Part 3

Judge Chin has just issued an order on making records of tomorrow’s status conference. I’m very pleased to report that it states, “[I]t was always the Court’s intention to have a court reporter present to transcribe the conference.” He denied our request for a video recording, but we made that request after being informed that there wouldn’t be a court reporter present, thus making recording utterly essential. We will, of course, make certain that we are able to provide the Public Index-reading public with a full transcription at the earliest possible opportunity.

D is for Digitize Thursday Tutorials Sold Out

We’ve had to turn off registration for the Thursday tutorials at D is for Digitize; we’ve filled our room. Our apologies to those who are interested but haven’t been able to sign up. The sessions will be recorded and will be available on the conference website afterwards.

The Public Hearing, Round 2

We have filed a renewed request for a video recording of the October 7 proceedings. Although Judge Chin will be conducting only just a status conference, rather than a full hearing, we believe that the public interest in what takes place inside the courtroom is just as strong. We also became aware that there would not be a court reporter present, so unless the proceedings are recorded, the millions of interested parties will be forced to rely entirely on secondhand, potentially inaccurate accounts.

GBS: Three Washington Legal Foundation Videos

The Washington Legal Foundation, which filed a brief opposing the settlement, has posted three short videos on the settlement featuring:

GBS: Recent Commentary Roundup

  • Lewis Hyde has an essay in the New York Times about orphan works, what ought to be done with the income they generate, and the way the class-action allows Google to “aggregat[e] the monopoly power latent in each orphan.” The argument will be familiar to readers of this blog, although Hyde’s exegesis of it is wonderfully literary. One thing is off, though: he claims that four to five million out of the seven million books Google has digitized appear to be orphaned. That estimate is absurdly high, and I don’t know where Hyde got it.
  • Tim Lee has a blog post responding to Tim Wu’s Slate piece. Lee reiterates his argument that the class action here is the problematic part; he calls it a “loophole” for avoiding legislation. I’ve made similar arguments, primarily in my ACS Issue Brief. But Lee’s position is more absolute than mine; he thinks that this kind of a structured settlement is absolutely out, and indeed, that the original lawsuit class was impermissible. (Google would have almost certainly litigated this issue had the case not “settled.”) Query who, if anyone, would have sued Google were the class action option not on the table.
  • Mike Masnick at Techdirt has a blog post on the value provided by book search. He tries to “bring the whole thing back into focus” by praising the usefulness of being able to search through millions of books. This whole settlement thing (and the criticism of it) is just a silly distraction from the important question: establishing Google’s indexing as a fair use. I beg to differ. Mike hasn’t yet wrapped his mind around the value of a full digital universal library-slash-bookstore; it makes search alone look like nothing. People are shouting about the settlement—pro and con—because it matters.
  • More entries from the Students for Free Culture blog: Jason Schultz on privacy, Ed Van Gemert on some of the Wisconsin collections available through GBS, Brandon Butler on intellectual freedom, Rebecca Jeschke on privacy, and Derek Slater on increased access.
  • Peter Brantley has a Huffington Post post (using the word “post” in the name of a blog leads to some ambiguity) that calls for Congress “to assume its rightful place in this debate — convening interested voices and arbitrating on behalf of public good.”
  • Alexis Madrigal, writing at Wired Epicenter, praises the value of Google Books, particularly for public-domain materials.
  • Brandon Butler at the Association of Research Libraries wrote a short report on the filings with the court, breaking down the objections, amici, and supporters into a number of helpful categories.

GBS: Congressional Research Service Report

The Congressional Research Service has updated its report on the Google Book Search case to include a discussion of the settlement and its opposition. Not much new here, but it is a readable synopsis of the story thus far.

GBS: Antitrust Disclaimer

I’ve had some private responses to my post on the economics of the pricing algorithm that suggest people may be making a bigger deal out of it than I intended. It’s not meant to represent my complete thinking (some of which is still unformed, anyway). The intended message was not “Grimmelmann thinks the pricing is completely okay,” or “Grimmelmann thinks transparency is absolutely central to the antitrust issues.” The algorithm itself is one small piece of a very large puzzle. I hope to be able to blog more about a few more of the antitrust pieces over the weekend, but, being realistic, D is for Digitize may well move from merely dominating my waking life to eating it entirely. I’ll do what I can.

GBS: Tim Wu Says Save the Deal

Tim Wu, Save the Google Book Search Deal!, Slate (Sept. 29, 2009):

Some people think it should be the government, not Google, that creates online libraries: Don’t hold your breath. Instead, the best analogy for the out-of-print version of Google Book Search may be a public utility. Think of it like a sewer system. Companies rarely build sewers without prodding or—dare I say it—a monopoly of some kind. The Anglo-American tradition, in fact, is to put a private company in charge of such public callings, especially those that require large investments. And in the big picture, that is what’s really going on here: the creation of an unusual kind of public utility to provide better access to old and unpopular books. …

All that said, a careful look at the settlement agreement shows that it isn’t perfect and needs to be better to serve the public. The Justice Department … have noticed that the deal may make it just a little too easy for publishers to fix prices even on their in-print e-books. That’s at least one thing that needs to change. At the same time, the DoJ needs to appreciate the inherent fragility of the project and be careful not to open it up to so many parties that the whole thing explodes.

I say let a modified settlement go forward, but let the court keep watch to make sure the deal achieves its public goals without undue private gain. This is the essence of the utility model: Let a private party do something in the public’s interest that would not happen otherwise while keeping an eye on what happens. …

But if you want to put Google in its place, the book project is the wrong way to do so. It is Google’s monopoly on Internet search that is valuable and potentially dangerous, not a quixotic project to provide access to unpopular books. So hold on to that sense of wariness, but understand that in this case, it’s misplaced. To punish Google by killing Book Search would be like punishing Andrew Carnegie by blowing up Carnegie Hall.