GBS: ASMP Case Is Related

Sorry I missed this one a few weeks ago, but Judge Chin officially accepted the ASMP image lawsuit against Google as being related to the Authors Guild suit. As the docket report humorously notes, “Judge Unassigned is no longer assigned to the case.” Whether Judge Chin keeps Authors Guild or not—and the mere fact that he hasn’t said anything yet may make it more likely that he will—I now expect the ASMP case to tag along with it.

UPDATE: A correspondent writes:

Actually, there’s a fairly simple reason that Judge Chin hasn’t said anything about either the AG or the ASMP iteration:

He can’t. He lost the authority to do so when he accepted his commission to the Second Circuit. As of that moment, he was no longer a judge on the United States District Court for the Southern District of New York. He would need a designation to do/say anything about the matter(s).

Instead, any reassignment order (or, for that matter, designation order allowing him to retain the case) will come from the Chief Judge for the Southern District of New York — presently Judge Preska. (Although the NYSD website hasn’t yet been updated…) At least when I’ve personally observed this in the past, the reassignment order (if any) issues about three weeks after the first hearing on the new court — that is, in this instance, about three weeks after 29 April (Judge Chin’s first panel on the Second Circuit).

Of course, as a sneaky bit, the Chief Judge could ask for a magistrate judge’s recommendation in the meantime…

Clues to who will be the next GBS Judge?

Hint: Follow the clerks…

James, This may be asking too much of your heroic team but, given that you think that the ASMP case will tag along with the GBS case, could you post pleadings in the ASMP case on the Public Index?

I just looked at Judge Chin’s Decision of Nov. 4, 2009, denying ASMP’s motion for reconsideration of his earlier denial of their motion to intervene. It seems to me that, at that time, the judge saw the class as including only holders of copyrights in textual works.

He says

The holders of pictorial copyrights are differently situated from the holders of textual copyrights. Frankly, in the context of a online database that is searchable using keywords, it makes sense to prioritize the rights to word-based material. It is true that the class could have included owners of pictorial copyrights… . (Emphasis added.)

However, under the settlement agreement, the class already did include pictorial works, not only “inserts” that were “illustrations in children’s books” but also pictorial work in books where the text and pictorial works were created by the same person and books with only pictorial works.

Under the Amended Settlement Agreement, (submitted after the order quoted above), the anomalous treatment of pictorial works under the settlement was, in a way, highlighted when the parties removed children’s book illustrations from the definition of “inserts”. And, of course, the argument I made regarding picture books (that the text is often meaningless without the illustrations) also applies to art history books, medical texts, and any number of other types of adult books.

Do you think that Judge Chin’s linking the ASMP case to the GBS case is an indication that he has come to think about the collection of works involved in the Google case differently than he did in November?

We have added a section for the ASMP case to our other cases of note page on the Public Index.

I note that on May 4, Judge Chin signed an order giving Google more time to file its reply. His signature block says “USCJ.”


Thanks for the addition to the Public Index. I looked at the order, but did not notice the signature block. Do you think this means he’s keeping the Google case?