GBS Status Conference: Opt-in Settlement in the Works?

At today’s status conference in the Google Books case, two things happened. Judge Chin started threatening to put schedule pressure on the parties, and they let slip that they’re working on an “opt-in settlement.”

Michael Boni, speaking for Google and the plaintiffs, asked Judge Chin for more time, until the middle of September, to continue their negotiations. Unlike last time, however, Judge Chin expressed some mild impatience. He was concerned that this six-year-old case wasn’t moving forward, so he suggested that he might give the parties a deadline to make them negotiate a little more efficiently. Judge Chin suggested that he saw the case, if it were to be litigated, in terms of fairly straightforward cross motions for summary judgment on whether snippet display is a fair use.

In the process of trying to reassure Judge Chin that the negotiations were making real progress, while at the same time not promising any particular outcome, Boni then explained that the parties “have been aiming for an opt-in settlement.” What that might mean is not obvious. It could mean an actual opt-in settlement, one that binds only class members who send in claim forms. It could mean a settlement in which Google commits to an open-ended offer to all class members. it could mean a narrower, scanning-and-searching-only settlement, so that copyright owners can “opt in” to book sales by striking their own individual deals with Google. The terms and details of such a settlement could vary in all sorts of ways. But now we know that the parties are working on a narrower settlement.

A follow-up status conference is scheduled for September 15 at 11:00 AM. If the parties don’t have at least an agreement in principle by then, Judge Chin will give them a “tight discovery schedule.” He concluded by offering the services of a senior judge or magistrate judge to help in the settlement negotiations. The parties said they would discuss the possibility.

Unfotunately cross motions for summary judgment on the snippet fair use issue wont resolve the more basic issue which is the continued scanning of entire works without permission from the copyright holders.Remember, Google’s deals with the cooperating university libraries/archives is to make entire works available in digital, not just snippets. Also a class certification motion is a major undertaking and it has never been clear that these purported class representatives (the Authors Guild)and their attorneys can be judicially enthroned in that exalted status. Maybe the delays are in Google’s favor procedurally, since the courts recently have taken a turn against class actions generally.

J Garchik, S.F Attorney

“the delays are in Google’s favor procedurally”

Could you explain?

I’m not surprised that Michael Boni wants more time. After all, the purpose of a class action lawsuit is to make sure that the lawyers get paid, and without class certification and a positive settlement for the Authors Guild, it will be hard for Boni to collect any portion of the $35 million available to him under the rejected ASA. I can’t any settlement, however, that would not create a monopoly position for Google, something that the objectors to the ASA wanted to avoid.

Jerome Garchik wrote: “Remember, Google’s deals with the cooperating university libraries/archives is to make entire works available in digital, not just snippets.” I find this hard to remember because I have never seen this in any of the public agreements between Google and the universities. The case is only about indexing the contents of books.

Several things are going on here.

First off, remember that this is not a legitimate lawsuit. This is a collusive lawsuit between the Authors Guild, which is actually little more than a front for a law firm, and Google. Google has already illegally scanned, etc., more than 15 million books by its own account, and wants the court to rewrite copyright law by rubberstamping Google’s infringement. The proposed settlement goes far beyond merely rubberstamping infringement, though. It would set up a parallel copyright office, run by Google and the Authors Guild, and writers/publishers would be forced to deal with that office. The Writers Guild would be paid off to the tune of many millions of dollars immediately for going along with Google’s scheme, and would get many millions more in the future. The Authors Guild would, of course, be selling out the authors which it (keep a straight face here) claims to represent the interests of.

The opt-in aspect is important because everyone involved knows that few authors or rights owners would willingly accede to Google stealing their work.

As to the status of the case, 6 years is ridiculous, and again speaks to the collusiveness of this suit. It may be that Google and its partner Authors Guild are hoping that Judge Chin will move to a different post, and leave this case in the hands of a successor less blessed with ethics and intelligence.

Make no mistake and have no illusions: This collusive suit is an attempt to get away with the biggest copyright piracy of printed books in history … and to get permission to continue the scheme.

But here’s something to ponder: Regardless of whether the class action goes, it is beyond issue that Google and its partners are engaged in CRIMINAL copyright infringement. So why is the FBI and Justice sitting on their rears? Why no investigation? Charges? Indictment? Prison time? It couldn’t have anything to do with Google contributing close to $1 Million to Obama’s campaign, could it? It couldn’t have anything to do with Google’s former CEO Eric Schmidt being an adviser and consultant to Obama’s campaign, could it?

Since Google started its copyright-infringing book scanning project, I have vowed not to touch anything Googlish to the maximum extent possible. We were quick to opt out of the GBS, although I remain unconvinced that doing so changed anything Google might be doing or going to do. I refuse even to use Google for online searching, canceled my Gmail account, and won’t put our books into Google Books. Why would I willingly deal with a company I simply don’t trust?

Where does the information come from that “the Authors Guild,…, is actually little more than a front for a law firm”,


Welwyn… have you been in the middle of the Simpson Desert for the past few years??

Wow, the anti-Google rhetoric is running hot, eh?

Most of it isn’t very convincing, considering two facts:

  • The libraries in question had the right to scan the books themselves, if only for the purpose of preservation.
  • No one, as far as I can tell, has convincingly come up with evidence that anything that Google has done has caused actual direct economic damage because of its treatment of even a small percentage of works.

And if we’re doing an economic tallying up of lobbying, I’d guess that over the last few decades the media conglomerates have out-spent Google by at least an order of magnitude. So no, my feeling is that the DOJ isn’t investigating Google because of corruption, but rather, because Google does employ very good lawyers who can make good estimates where the line divides between “possibly legal and possibly illegal, but if illegal not so illegal that we’ll end up in jail or bankrupt” and “blatantly illegal”.

The only thing which bothered me was the obvious attempt to grab a new monopoly on what would have been the newly-freed orphan works.

“a new monopoly ” over most of the worlds writing, is not a small matter.

“convincingly come up with evidence that anything that Google has done has caused actual direct economic damage “

The settlement went far beyond what Google has “done” up to now and that was the rub.

General if not particularly bright question: will the 9/15 status conference be open to the public? I had the pleasure (sic) of sitting in on last February’s hearing and would love to be in the room for this round.

Thanks for any insight…

Yes, it will be open to the public.

Same place as in February? Same Bat channel?


Yes. All of the hearings and status conferences have been in Courtroom 11A, and there is no indication that this will change.

Thanks for this. I’m in the Rutgers MLIS program and was taking a class on Information Policy taught by Nancy Kranich during the 2/10 hearing. She spoke highly of you and I’ve greatly enjoyed your various discussions of the Google mess that have been posted online. I’ll try to find you to meet and thank you in person 9/15.