The Associate Press reported on Monday evening that the court has given preliminary approval to the settlement negotiated between Google and book authors and publishers over the use of copyrighted materials in the Google Book Search Library project. In giving preliminary approval, Judge John E. Sprizzo authorized the publication of the notice of settlement and set a final settlement fairness hearing for June 11, 2009.
Timeline
The judge’s decision sets in motion a series of events over the next eight months:
January 5, 2009, the Notice Commencement Date: Starting on this date, Class Counsel (the lawyers representing the authors and publishers) will begin sending the Notice of Settlement to settlement class members. On or before January 12, 2009, the Class Counsel will start publishing the settlement’s Summary Notice [PDF] to a wide, varied, and impressive quantity of publications [PDF]. All of this notification must be completed by February 27, 2009.
May 5, 2009: The deadline for members of the settlement class (authors and publishers) to op-out of the settlement. It is also the deadline to declare an objection to the settlement, file a notice of intent to appear at the final settlement hearing, or for members of the class to establish counsel of their own other than the counsel appointed for the class.
June 11, 2009 at 1pm, the Final Settlement/Fairness Hearing: The hearing will be held in courtroom 14C, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY. “The purpose of the Hearing shall be to determine: (a) whether the terms and conditions of the proposed Settlement Agreement are fair, reasonable, and adequate; (b) whether to certify the Class and the Sub-Classes for the purposes of the settlement; and (c) whether the proposed Settlement Agreement should be approved by the Court and judgment entered thereon.”
In the Grand Scheme of Things…
In reading Judge Sprizzo’s order granting preliminary settlement approval, I was struck all over again by the scope of what is being undertaken in the settlement. Paragraph 21 of the order (with emphasis added) is:
Members of the Settlement Class and Sub-Classes will be excluded from the settlement only if they comply with the opt-out procedures set forth in the Notice and Settlement Agreement, which procedures are hereby approved as fair and reasonable. Unless they have excluded themselves, members of the Settlement Class and Sub-Classes shall be bound by all determinations and judgments in this case relating to the proposed Settlement, whether favorable or unfavorable, including the dismissal of the Action with prejudice and the release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Library Releasees and Other Library Releasees from liability to members of the class. Persons who timely exclude themselves from the Class in accordance with the procedures prescribed in the Notice and Settlement Agreement will not be bound by any orders or judgments entered in the Action to the proposed settlement, and shall not receive any benefits provided in the proposed Settlement Agreement in the event it is approved by the Court.
I’ve often said “I’m not a lawyer, but…” — then go on to give a non-lawyerly opinion. This time I’m saying “I’m not a lawyer, and” I don’t get how the court has the power to do what it is doing. The number of people in the settlement class is huge — all of the authors who have self-published and/or retained copyright to their works and all of the publishers over the last eight decades, not to mention their heirs (since the current incarnation of copyright law extends the rights 70 years past the death of the author). It would seem that in the span of four months (January 5th to May 5th), all of these people need to see the notice and make a decision on whether they want to op-out of the settlement. Tens of thousands (hundreds of thousands?) of people need to decide whether they agree with a sweeping new Books Rights Registry and what will probably become a template of an agreement covering retrospective, had-not-been-conceived digital rights.
Is there precedence for this?
I first found announcement of the judge’s order in a posting at The Cite. There is also an article over in ars technica about it.
4 Comments
Hmm, in one sense there’s a precedent for this, any other class action suit ever. That’s how class action suits work, in the US. (Other countries may have quite different legal frameworks for such things).
But there is one odd thing here. It would be an ordinary class action settlement if it was just about _Google_. You can be in on this settlement with Google, or you can retain the right to sue Google independently later if you want. That’s how class action suits work. (Although since Google is promising to take down anyone’ stuff that asks them to, I’m not sure what you’d have to gain from an independent settlement, not joining in the class?)
The weird thing is the Book Rights Registry. Which reminds me, wait, while the Books Rights Registry is being _set up_ as as this kind of over-arching precedent setting thing (just look at the name), the only _legal_ standing it will have is with Google specifically. No other displayers-of-digital-text have agreed to use it. And even if they do, use of it doesn’t automatically grant ’safe harbor’ status to anyone other than Google. it’s just part of the settlement between Google, and those publisher’s who are part of the class.
Of course, we can count on it being used as a precedent, it is intentionally being set up as a template, and we can count on the publisher’s organizations offering this same sort of deal (esp, use of Rights Registry == ’safe harbor’) to lots of other people. Which is why it maybe SEEMS like such a big thing that how can this judge have the power to approve it? But legally, all he’s approving is a settlement between Google specifically and the class.
There is no _legal_ safe harbor provided by the Rights Registry, even if the judge approves it. It is merely a settlement between Google and the class who is included in the settlement.
It’s sort of an attempted end-run around congress’s failure to modernize actual copyright law for the digital world. Which, the copyright-owning-class would honestly rather they NOT do, that’s a can of worms they don’t want to open.
You’re right, of course, Jonathan — the point of a class action is to efficiently extend the judgement to a large group of plaintiffs. It is the scope of the plaintiff class that I find breathtaking. That’s the part I wonder about; is there precedence for such a large class to move through the process at what seems like internet time (four months)?
You also bring up a very good point about the extent that the Book Rights Registry extends beyond the settlement with Google. Paragraph 6.2(b) of the Settlement Agreement (page 65) says (with emphasis added):
The Notice of Class Action Settlement (the distilled summary of the Settlement Agreement) is even more explicit about the possibility that the work of the Registry will extend beyond Google. This quote comes from paragraph 8(B) on page 11 (with emphasis added):
I’m guessing the Registry, once it is established under the court’s authority for rightsholders as defined in the settlement, can act as an agency for the rightsholders to enter into contracts with other entities on behalf of the authors/publishers that remain in the class. As Lawrence Lessig points out, some contracts can supersede copyright law. Can the contract between the Registry, on behalf of the authors/publishers, and a new digital distribution option provide effectively the same thing as the “safe harbor” in the Settlement Agreement?
If you don’t want the Registry to act on your behalf in this way, the only way to make sure that doesn’t happen is to op-out of the class — even if you like everything else in the agreement. If you sign up for the class, it would seem that the board of directors of the Registry would be able to enter into such agreements on your behalf, and may not give the individual rightsholders a way to opt-out of subsequent agreements like it has for the Google settlement.
What would be very useful, at least in my mind, would be a comparison and contrast with other rightsholder conglomerates such as BMI and ASCAP.
Agreed, except I suspect that the Registry would HAVE to give rights holders a way to opt out of any subsequent agreements it makes with non-Google entities.
Remember, this settlement only legally applies to Google.
That’s why the things you highlighted in the agreement about the limitations on the Registry acting with parties other than Google: “to the extent permitted by law, license Rightsholders’ U.S. copyrights to third parties.” “subject to the express approval of the Rightsholders of the Books involved in such other commercial arrangements”
So being in the class and agreeing to the settlement won’t give the Registry the legal ability to license to anyone other than Google without your permission. They won’t have the legal authority to do that without an opt-out, and may not even have the legal authority to do it on “opt out” rather than an “opt in” basis.
Good point — if the Registry doesn’t give rightsholders a way of opting-out of subsequent agreements, the Registry itself is likely to be the defendant in a subsequent lawsuit.
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