Please Take Notice

In about ten minutes, I’m going to hop on a plane to go speak at a conference in Brussels on the Google Books settlement. I will be reachable only sporadically until Monday.

I hope to be back online tomorrow to write about today’s forthcoming filing from the parties asking Judge Chin to approve the settlement, but we will see. My prediction: if nothing else, it will reverse some of the gloom-and-doom mood in the media coverage of the settlement. It’s been (almost) nothing but criticism for the last few weeks; this is the parties’ best opportunity to deliver a full-on press in favor of the settlement, and I’m expecting a filing at a high level of legal and rhetorical skill. They’ve had a long time to prepare.

Please don’t call me in the next few days about anything non-urgent. Three words: international roaming charges.

I’ve posted an analysis in my blog of the parties’ filings, including links to the Authors Guild filings on and a copy of Google’s brief, which doesn’t seem to be there yet but which I got by e-mail.

There is a 60 page general Brief jointly filed by the AG and the Publishers, and a l90 page detailed Brief purporting to answer specific objections,containing footnotes referencing many specific filed Objections. These are posted so far on The Public Index and should be carefully studied. It appears they do not try to justify the $30 million legal fee, which many objections did question. In addition these filings reference 3 important declarations, (one from Kinsella), which have not yet been posted on The Public Index but should be if possible, as these appear to present important details of service of the class action notice, details of pending organization of the BRR under NY State non profit charter laws, and details of opt outs and claimed opt ins. Ed Hasbrouk discusses the cited differential in opt outs and opt ins in the AG-Publishers briefs,but the cited statistic must be taken with much skepticism, since the op ins may be window dressing by the publishers, who are circumvening the settlement and its unfair 63-37 split, for a higher 70-30 split or higher under the Partner Programs.In other words, we need to know if the publishers are claiming the same books in the GBS and in Publisher Programs with Google.
One other point, about Discovery claimed by the AG and the Publishers’ counsel: They claim they reviewed millions of documents from Google and the scanned libraries. (I bet these millions of pages include the texts of the scanned books themselves.) But these counsel, seeking a $30 million fee ( for the authors alone) did not appear to take a single deposition.

A further comment on Ed Hasbrouck’s blog comments regarding the parties’ disclosure now that over 60,000 authors have already claimed 1.1 million books: if these are principal books, not multiple editions, at $60 per principal book the GBS settlement fund is already exhausted, no settlement funds for any orphans or late claimants- or each principal book will not even get the promised , much touted $60 per. How can that be a fair, just or equitable deal?

Under section 5.1(b) of the settlement, Google is obligated to make an additional payment into the Settlement Fund so that each claimed book will receive its $60.

Jerome, You mentioned that in the plaintiffs’ brief in supporting their motion for approval of the settlement, “It appears they do not try to justify the $30 million legal fee, which many objections did question.” If you look at The Public Index now, you’ll see that the plaintiffs filed a separate motion and brief regarding the legal fees.

James, I’m somewhat confused about some things because of all the papers the parties filed on Thursday: What motion/s, exactly, is/are the subject of the February 18 hearing?

Also, thinking of Jerome’s remarks, can you tell us if the Feb. 18 hearing is meant to be the only opportunity that class members have to argue about legal fees? After all, there may well be class members who did not object to the settlement agreement, but do not feel that the attorneys should be paid as much as they ask. Am I correct in thinking that class members were supposed to understand from the notices that they were expected to object to fees by January 28?

That seems like logical legal reasoning to me, but reasoning that is confusing & frustrating to many class members. While I feel that Author was wrong to be angry with you, it is easy to sympathize with his frustration about this case.

I believe—someone correct me if I’m wrong, that the subjects for the hearing are whether to approve the settlement and whether to approve the request for fees. Everything else filed Thursday is in support of these two motions.

I believe that class certification and objections to it are also to be considered at the hearing. Class certification is included in the proposed order, along with approval of the settlement, but my impression was that it was technically a separate issue, which could be ruled on separately (i.e Judge Chin could certify the class but not approve the settlement). Is this correct?

Good question. I’m not sure. But I am pretty sure that Judge Chin wouldn’t go down that route. The possibility wasn’t briefed, no one is arguing for it, and Google would object vociferously. The authors and publishers might even object, too. This class has been shaped for settlement, and it might not be the class they’d want to litigate with.

The class is being certified for SETTLEMENT PURPOSES ONLY. If the settlement is not approved, there IS NO CLASS!!! The two get decided together. Understand?

Oh, and usually winning class certification is what brings about a settlement, i.e. plaintiffs get a favorable ruling with a class cert, and defense begins to think they should start or participate in settlement negotiations.

In this case, both parties WENT STRAIGHT TO SETTLEMENT NEGOTIATIONS without any litigation - which any class action man, or class action woman, or anyone with the least little bit of experience with class actions will tell you a SURE SIGN of a damn dirty deal designed to get the Lawyers involved A HUGE PAYDAY!!!

The plaintiffs never had a chance for representation — they were sold down the river. The Authors Guild and named plaintiffs are fools (though they did get tossed a bone), and I resent them being class reps.

If the claim for a class representative status binding on all authors, was rejected , what would happen to the settlement contract?

If the judge decides not to certify the class, then he would have to reject the settlement too, for that reason.

The class is being certified for SETTLEMENT PURPOSES ONLY. If the settlement is not approved, there IS NO CLASS!!! The two get decided together. Understand?

James says “If the judge decides not to certify the class, then he would have to reject the settlement too, for that reason.”

James you are ass backwards here.

LISTEN TO ME — The Settlement Approval is what is getting decided. The Class would be certified for Settlement Purposes ONLY!!! The two get decided together, BUT the PRIMARY decision is the SETTLEMENT APPROVAL!!! The Judge is focused on the Settlement.

I think I need to start teaching class, here.

James, if you want to bend your mind around something, explain to us why the plaintiffs’ counsel filed a Third Amended Complaint on November 13, 2009.

On further reflection, I’m not sure it’s out of the question for Judge Chin to certify the class but not approve the settlement. That wouldn’t be, as I said above, a lead-in to litigation (although I do remain uncertain what the precise legal effect of the words “for settlement purposes” are). Instead, it could be a compromise ruling, one that resolves many of the class-action and procedural issues in favor of the settling parties but requires further negotiations on other issues having more to do with the substance of the settlement. But it still strikes me as unlikely; no one in the room is pushing that outcome, even as a fallback.

I agree with Author that the key decision, on which everyone is focused, is the settlement itself, and that the settling parties are focused on the class as a means to that end. Most of what I’ve been saying about what I expect to actually happen is based on that premise. I’m not disagreeing here.

When I talk about the class as apart from the settlement, I’m just trying to think through the logical set of possibilities. Some outcomes are off the table for legally indisputable reasons; Judge Chin couldn’t both refuse to certify the class and also award attorneys fees to plaintiffs’ counsel. Others outcomes are logically possible: he could certify the class and reject the fee petition. I think it’s useful to have that information available.

We could hem and haw, and play theory, practice, and conjecture all night!

JEEZ, this is exactly my point that this case is about LAWYERS throwing in their two cents and getting PAID to work their jaws, and tippy type on their computers!!! What a load of HOGWASH!

People want some CLARITY here!

Do I have a crystal ball? Can I read Judge Chin’s mind? NO!!!

Do I know a thing or two about Rule 23? YES!!!

Am I getting paid to share my knowledge and experience? NO!!!

Will I continue to post? Stay tuned …

People ask questions; I try to answer them.

James having had a quick sqwiz at rule 23, the claim for class status looks under rule 23 to be wobbly. The first test is passed, there is an impossibly large number of ‘authors’. But the other tests ?

‘Authors’ is a pre-scientific classification rather like the medieval bestiaries that lumped fish ,dolphins and turtles in the same class/group : ‘things found swimming in the sea’.

‘Authors’ have nothing in common apart from being users of some of the varieties of human systems of symbolic representation. If something was today , to pass the Turing test, would ‘it’ also automatically become a member of the clade? What mortal ancestor could frame that symmetry?

I have several nagging questions.

  • If the Settlement is disallowed, what happens to the rights of all the parties who already explicitly opted in? Yes, they did this voluntarily, but on the other hand, there are very significant issues regarding the Settlement.

  • If the Settlement is allowed as some kind of ongoing business arrangement, but the classes are redefined, or “rights holders” is redefined (to account for the fact that an author may have transferred some copyrights covered by the Settlement to his/her publisher, but not other copyrights), will all the opt-ins be disallowed and everyone has to start over?

  • Is anyone but the foreign rights holders whose countries were opted out, pushing to forbid Google to sell books they already scanned, whose rights are held by parties who opted out of the Settlement? I opted out, so this is an immediate concern of my own.

  • What happened at the Brussels conference?