GBS: Randy Picker: Moving Forward in Google Book Search

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.

Is there a distinction to be made between class certification, and approving the settlement? i.e. could Judge Chin refuse to certify the class, and not even reach the issue of the settlement?

Yes, although I’m not sure this is a distinction that much matters. The motion for final certification of the class and the motion for approval of the settlement are being presented simultaneously.

C.E. Petit has a nice survey of some of the options open to Judge Chin.

Other possibilities, if the current proposal is not approved, are that (a) Judge Chin might (have to?) hand the case off to another judge if it drags on too long, and/or (b) the Supreme Court might announce its decision in Reed Elsevier v. Muchnick while the Google case is still pending in the District Court. (One of the less widely-noted arguments in the latest objections by Prof. Samuelson and her academic co-sgners was that Judge Chin should postpone any decision in the Google case until after the Reed Elsevier decision, and that depending on that decision it might become appropriate for him to order the parties to renegotiate the Google 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.

Perhaps this is the nub of the issue. When it satisfies one of those three area requirements, it fails the other two. It is not easy to be three very different things at the same time. There is a definitional problem/quality about the GBS. Exactly what is it?

If the group making the original class action had made a claim of : A right to recieve payment and an sole right of representation of the whole class of authors, in negotiating the terms of the payment .

Who would it have been filed against?

Lynn Chu has raised my consciousness that there well may be other legal aspects we have not considered. From her background as a corporate attorney doing “big deals,” she takes the view that

1.) the attorneys for the AAP and especially, the AG were not competent to represent the parties involved, especially in a deal of this size. She points to the fact that there was no independent valuation of the property changing hands as evidence of this — search being one of those properties.

2.) the settlement is essentially an adhesion contract, whatever that is. (??) And therefore, illegal on that front as well as all the rest.

Interesting… Salley

A ‘contract of adhesion’ is a ‘take or leave it’ contract: one where you don’t get to negotiate the terms. Like a car-hire agreement, or a software license, or something of that kind.

I too first encountered the term by reading Lynn Chu on the GBS …

If I grasp the matter correctly, they are not illegal, but for understandable reasons they may be held to require special scrutiny from the courts.

I don’t think y’all get it!!! This is a case like any other legal action … IT IS ABOUT LAWYERS GETTING PAID!!! Judge Chin is a LAWYER — he is doing his JOB!!! And, he is getting PAID to do it. Will he eventually approve Settlement 2.0 or 3.0 or 4.0, etc.? OF COURSE he will (until he gets sent to his appointment on the court of appeals)!

Does it matter about Class Certification and Final Approval? — hell no! The END justifies the MEANS — and the end will be Google getting more than they should and a bunch of lawyers getting paid, including the one that runs this website.

Have fun in Brussels talking to a bunch of lawyers — LAWYER!!!