I’m in Chicago, but my students went to today’s status conference in the Google Books case and filled me in. My deep thanks to Dominic Mauro NYLS ‘10, Raphael Majma NYLS ‘11, Leanne Gabinelli NYLS ‘11, and Kristoff Grospe NYLS ‘12, for their careful note-taking and concise summaries. Here are the highlights of what happened:
The plaintiffs (i.e. the Authors Guild’s class-action attorneys and the named publishers) and Google announced that they have agreed on a schedule for the pretrial proceedings. Judge Chin called the schedule “generous” with a notable sigh, but said that he would approve it. One gathers that he will not be sympathetic to any future requests for schedule extensions. Here is the plan:
The plaintiffs will move for class certification by December 11, 2011. Google will respond by January 26, 2012, and the plaintiffs will reply by March 12.
Discovery will need to be rebooted, since none has been done since 2006. The restarted discovery process will close on March 30, 2012. That gives a little over six months. Expert reports will be due by April 20, with rebuttal reports by May 10, and expert depositions May 14 through May 25.
Motions for summary judgment will be due by May 31, 2012. Opposition briefs will be due by July 9, with replies by July 31.
The pretrial conference will be held on a date chosen by Judge Chin.
Settlement discussions will continue in parallel with the motion practice. The publisher-Google talks have made substantial progress, and so Bruce Keller for the publishers said that the schedule “may not matter.” For the author class, Michael Boni expressed less optimism about the prospects for settlement. He suggested that Judge Chin could appoint a mediator or magistrate judge to help with the process, but Daralyn Durie for Google said “no thanks.” Judge Chin agreed not to appoint a mediator, but again offered to refer the parties to a magistrate judge if they want.
Judge Chin inquired about the framing of the case. He asked whether the legal issues focused on the display of snippets, or whether the plaintiffs wanted to “expand” the suit. Both Keller and Boni made a point of emphasizing that they saw the case more broadly. Keller explained that it was about copying, scanning, storing, and displaying the works (including, but not limited to snippets). Judge Chin expressed surprise that the list didn’t include “selling.” [JG: Now that the settlement is off the table, so is the fiction that the underlying copyright lawsuit came anywhere close to book sales.] Boni said that when the suit was filed in 2005, they couldn’t envision what kinds of uses would be made of the scans. [JG: It isn’t clear that this characterization helps his case.]
The lawsuit’s structure may also change. The authors and publishers may want to file amended complaints — unlike the joint complaint filed as part of the settlement, these would be separate. And the photographers are still kicking around. Their case is waiting for Google’s answer, which is currently due next month. They are content to wait until then, and then decide whether they want to join the author/publisher suit, join the settlement talks, or litigate on their own.
The HathiTrust lawsuit was not mentioned at all during the status conference.