GBS: Some Procedural Notes

Judge Chin’s order rejecting the proposed settlement has some other consequences, as well. To see why, it helps to look at his order from a year and a half ago preliminarily approving it. That order has consequences I’d forgotten about until reminded this week by people who know more civil procedure than I do.

Paragraph 28 provides that if the court doesn’t grant final approval, “any class certification herein and any actions taken or to be taken in connection therewith (including this Order and any judgment entered herein) shall be terminated and shall become void and have no further force and effect …” In other words, Judge Chin’s order rejecting the settlement also inherently unwinds the preliminary approval. This includes paragraph 27, which provided that “all members of the Amended Settlement Class … are barred and enjoined from … asserting any claims … against Google that were brought or could have been brought in the Third Amended Class Action Complaint, and that relate to or arise out of the claims as described in that complaint.”

In simpler English, this means two things. First, the injunction against overlapping suits is now gone. If any authors or publishers don’t like the plaintiffs’ conduct of the suit and would prefer to go after Google directly, they’re now free to again. It’s quite possible that any such suits would rather quickly be transferred back to the Southern District of New York for combined processing, a bit like how the photographers’ case was also assigned to Judge Chin. It’s possible that some from the sow-Google-with-salt camp might choose this route, particularly if it seems that another settlement is in the offing.

Second, Paragraph 28 from the old order requires me to walk back my earlier assertions on Twitter that Judge Chin’s order rejecting the settlement is not automatically appealable. His new order is also effectively a denial of class certification, which is immediately appealable. I’m not certain about this conclusion, in part because it comes after being certain about my earlier and opposite conclusion, and in part because the new order does not itself say that it denies class certification. But it does lead me to believe, in an “I would rather do something else on a sunny Saturday than research this further” kind of way, that if Google and the plaintiffs want to take an appeal, nothing stands in their way.

James an appeal would be to a higher court?

Yes, the Court of Appeals for the Second Circuit.

James you are the lawyer but -If I read you right- the clincher ground for refusal was ‘Rule 23 ‘.

Would an appeal about class representative status, be relevant grounds?

I’m not sure what your question means. If Google and the authors and publishers appealed, they would argue to the Court of Appeals that Judge Chin was incorrect to reject the settlement. They would argue that Judge Chin incorrectly concluded that Rule 23 bars him from approving it, and they would argue that the settlement is fair, adequate, and reasonable. Those would be the “grounds” for the appeal.

Sorry I thought “His new order is also effectively a denial of class certification, which is immediately appealable. ” meant that they would be appealing the issue of class certification status.

The problem with a claim of representing the class interests of the future is - the future dose not yet exist.

Among his reasons for denying certification were that the named authors and publishers may not adequately represent the other members of the class, particularly with respect to orphan works. So that would be on the table in an appeal, as well.

Will the photographers “me too” action linger in this legal twilight zone too? Are they going back to the negotiating table with Google?

What I’m wondering is this: If the argument is that the Settlement class does not adequately represent locatable authors and publishers, presumably more could be added to the class. Could they not? If, as a random example, academic authors were not represented, couldn’t one or two just be added to Author’s Guild etc., side?

But, if the argument is that the owners of the so-called orphan works are not represented in the class, I don’t see how they ever could be.

Frances -might be wrong- but effectively it is the future that is not included in the class of pre-existing authors.

Curious about possible knock on effects .

Could the question mark over scanning (without consent) for ‘fair use’ type purposes be effectively back in the picture? Googles willingness to pay could be seen to suggest that they have doubts about the legality of the basis of their whole operation.

What is the legal status of all the scans that have been made over the past few years ? Can Google keep them in a secret dark archive?

And the libraries are in a sort of contractual arrangement with Google- are unforseen knock on effects , possible for them

Good question, Frances. Google will certainly raise this argument if the case ever proceeds to litigation. It may be that the orphan/unknown/silent owners can be effectively represented as to Google’s past uses in scanning and searching their books, but not as to its proposed future sales of complete books. The argument might be that if they don’t sue Google as part of the class, their claims against it would never be given a hearing, whereas the now-rejected settlement would have caused them to lose further rights on top of what Google has already allegedly infringed.

I suspect that this is not the last we will hear about this issue.

“the injunction against overlapping suits is now gone. If any authors or publishers don’t like the plaintiffs’ conduct of the suit and would prefer to go after Google directly, they’re now free to again. “……”particularly if it seems that another settlement is in the offing.”

Could there be a rush to get a claim in??

It is interesting to think what impact of the decertification of the class will have on the lawyers, particularly Michael Boni. My recollection is that he was supposed to get $34 million In the settlement. I believe that he also has said that he has already spent millions on the case. I am under the impression that it is harder to secure attorney’s fees if this is a simple copyright case, and not a class action. And I am not sure if expenses incurred to protect the interests of the now-dissolved class would be reimbursable if this becomes just a simple copyright suit.

Am I correct, James, that there are strong economic incentives for the plaintiffs’ lawyers to argue for the creation of some type of new class - and then to either reach a settlement or to litigate the fair use issue on behalf of that class? If they don’t, could they be out millions?

Peter, you are right about the class counsel in the Authors Guild suit; the fee arrangements for publishers’ lawyers in the related McGraw-Hill case are not public.


Suppose a class-action suit is determined adequate for relief of past wrongs done to the owners so-called orphan works. Just not a forward-looking business arrangement as described in the rejected Settlement.

Could Google in effect create a forward-looking arrangement by selling the orphan works, and using them in all the way that would have been permitted by the Settlement if the Judge had approved it as an opt-out contract? And then, could Google use a different, future class-action suit to “redress” those wrongs and gain the rights Google is trying to gain through the current suit?

In other words, could Google legally seize rights to the so-called orphan works by using a legal strategy of two class action suits? Or rather, by discarding the current suit, inflicting some more wrongs, and inviting another suit?

In practical terms, I doubt it, because Google would get absolutely clobbered in the second lawsuit. But your question does expose a potential weak spot in my theory of the limits on class action law.



Considering that Google is still scanning books and as far as anyone seems to know, copyrighted books, why has no one issued an injunction to halt the scanning? Could this now be done by an entity that is not a party to the suit? For example, the National Writer’s Guild sent around an email saying scanning should be stopped, but could they not just issue an injunction?

Only a court can issue an injunction. A copyright-owner plaintiff would have to file suit, move for an injunction, brief and argue the motion, brief and argue the inevitable appeal, and win. This is not going to be cheap: think five figures, or six.

“We’re going full steam ahead, no matter what happens with the settlement.” —Dan Clancy, Google Books executive, 2009-07-24

“Now that the settlement is dead, the Justice Department should ask Google to stop all scanning of in-copyright works, and place all previously-scanned, in-copyright works that were scanned without express permission of the rights holder, in a dark archive. Google can use them when opt-in permission of the rights-holder is obtained, or when Congress or the Supreme Court resolves copyright infringement issues.”

The above two quotes have been at the top of for more than a year now.

This discussion seems to dance around central issues, and prefers to deal with legal minutia. Here’s the real question: Will Google increase the rate of their scanning of copyrighted works until such time that a court forces them to stop? I say yes. They have nothing to lose. Even if they’re required to place it all in a dark archive, it’s still a huge corporate asset and they’ll be able to monetize it at some point in the future.

Frances - the original class action, was essentially about ‘fair use rights’ versus right holders rights to refuse consent I.e it was not about payment for usage . I doubt that it was initiated as some sort of conspiracy by ‘Google’.

Libraries are one of the few places where large numbers of presorted and preselected - worth keeping on the shelf- books can be economically and quickly scanned. The libraries effectively contracted an near exclusive right of access to Google. The position of libraries in all this intrigues me, especially as the economic pressure to cut public expenditures ( the sub prime debts will have to be paid eventually) means that many libraries physical collections will inevitably shrink or even completely disappear over the coming decade. The dark archive might be all that is left.

“What’s next?” article from libraries’ standpoint: