Status Conference Summary (in Absentia)

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.

So the idea of a Settlement is still on the table.

I believe that I read, in some publicly posted contracts between Google and the libraries, that Google would pay the libraries’ legal costs if the libraries were sued regarding the scanning project. It’s been awhile since I read the most recent proposed Settlement, but I believe it provided legal indemnity for the libraries.

Could the Hathi Trust suit be merely an attempt by the Author’s Guild to gain leverage in negotiating yet another version of the Google Settlement? With the prospect that if the Author’s Guild gets what they want out of a new version of the Settlement, the Hathi Trust suit would then be dropped?

I could be wrong, but to me, there has been a lot less coverage in main stream media of this “Google event” than of others in the past. Could this lack of interest be the result of Google losing its “Do No Evil Cloak”?

I think it could also be the result of media fatigue with a case that is grinding on into its sixth year, and in which nothing dramatic is happening. And if this were about Google losing its cloak, wouldn’t that tend to lead to more coverage, not less? Scoundrels have always been more interesting than saints.

It was news when the “Do No Evil Company” to so many people was accused of theft. Today the news is, as to use one of your lines, “Dog Bites Man” kinda story - “Big company with questionable ethics (ie drugs ads)out for profit gets sued”

I guess James, depending on how Google is received in the US Senate today, we may learn if their “Do No Evil Cloak” is intact.

Back when the Author’s Guild first filed suit against Google, Google offered copyright holders a database for opting their books out of scanning for the Library Project. See:

I just checked and my account, with the full list of books I opted out of scanning, is still there.

Various authors have told me that Google scanned books they opted out of scanning, and presumably, the Hathi Trust has copies of those scans. However, this database does offer lists of books their copyright holders explicitly did not want scanned, plus contact information. Although I am sure that many copyright holders never heard about this option, others did. It is one natural place for the Hathi Trust to check whether books are “orphaned.” There are also the various opt-outs copyright holders have presented in regard to the proposed Google Settlements, and again there is a Google database (or databases?) of those that the Hathi Trust could presumably check.

Does their checking process include these databases, or will it?

Brandon I did not ‘see’ your post.

In Australia the educational uses you speak off would (provably) be already covered by the Commonwealth of Australia’s statutory authority CAL,as they are essentially variations on photocopying for education purposes. However they are not a ‘free’ use.

They would provably be covered by

Public Lending Right (PLR) and Educational Lending Right (ELR) are Australian Government cultural programs which make payments to eligible Australian creators and publishers in recognition that income is lost through the free multiple use of their books in public and educational lending libraries. PLR and ELR also support the enrichment of Australian culture by encouraging the growth and development of Australian writing. If you are a book publisher or creator—author, editor, illustrator, translator or compiler—you may be eligible for a payment under the PLR and ELR schemes.

Public Lending Right (PLR) and Educational Lending Right (ELR)