He writes:
It is time to find out. There are a staggering number of objections to the ASA. These range from antitrust concerns—more on those in a second—to privacy issues, to how foreign authors and works are treated, and on and on. But we have reached a point in the process where we need to get some sense from Judge Chin on how he sees the scope of the class-action power in copyright. Whether he sees a broad power or a narrow power will determine the path forward.
I think that is exactly right. Yes, anything could happen in the next few weeks, but I agree that the next move is Judge Chin’s. Until now, he has been very hands-off in his case management. He granted the four-month delay, but since then has been trying to keep the case procedurally on track while deferring all substantive rulings. But now, the issues have been framed and sharpened.
Whatever Judge Chin does after the hearing will take heavy lifting. Whether he approves the settlement, rejects it, or pushes for modifications, he’s going to have to commit some of his authority. Any of these routes will require him to reject some positions as legally wrong; particularly if he wants to see the settlement modified, he’ll need to get in the driver’s seat.
That leaves what DOJ labels Google’s de facto exclusivity. I have found that troubling all along as well, but it isn’t clear that there is an internal antitrust remedy for this. The new DOJ statement of interest cites no case law or statutes as authority for its power to resolve this issue. Instead, this seems to be a concern addressed to Judge Chin now should he approve some version of the settlement agreement in which Google gets exclusive authority vis-à-vis the orphan works. As I have argued before, this would be a decision by a governmental actor to grant a single franchise to the orphan works. This takes us back to the scope of the class-action power: if Judge Chin concludes that he has the power to grant a license to the orphan works to Google, does he also have the power to expand that license, perhaps, say, by allowing the unclaimed works fiduciary to license those works on behalf of the orphan works holders?
In a narrow sense, the answer is clearly “no.” Judge Chin can’t do anything on his own. The only way he could expand the license is to reject the settlement, indicate he’d approve it if the parties expanded the license, and wait for them to return with a redrafted settlement. In a larger sense, this issue is only on the table if, pace the Department of Justice, Judge Chin concludes that the class action issues are not a bar to the settlement.
Randy is picking up on something that’s increasingly characterizing my own view of the settlement: it’s very hard to analyze the settlement in terms only of civil procedure, antitrust, or copyright. Looking at it through any one of these lenses seems to miss something critical. There are real issues in these areas, but they aren’t quite debates about the settlement’s essence. Only at the intersection of these three areas does the settlement really come into focus.