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Last November, we reported that Google had agreed to a $125 million settlement of a copyright class action filed against it by the Association of American Publishers and the Authors Guild in response to its Google Book Search endeavor. The details of the settlement agreement are many, but, most importantly, the class settlement allowed Google to continue its process of digitizing books from university libraries into an electronic database. Access to this digitized library will not, in fact, be free, like its popular search engine or maps feature; instead, under the settlement agreement, Google will have the right to charge for subscriptions to entire library collections, or, alternatively, a fee for access to a single book with revenue to be shared by Google, authors, and publishers.
Very recently, however, there has been a fair amount of rumbling from a variety of different sources about the terms of the settlement. In recent weeks, the Justice Department has announced that it has opened an inquiry into possible antitrust violations of the settlement agreement, while its state AG counterparts have likewise followed suit. The always-pugnacious associations of libraries have even perked up and called on the district judge overseeing the fairness of the settlement to monitor the agreement going forward in order to ensure privacy protections, so that, for instance, what you happen to read online will not be stored in the vast expanse of cyberspace and become accessible (or open for resale) in the future. Finally, music publishers have finally caught on that the agreement itself might encompass some of their copyrighted material in the form of lyrics, and, possibly, sheet music, and have warned their members that their rights as songwriters may be implicated. Others wonder whether screenplays and television scripts fall in the settlement definition of “books” as well and anticipate an eventual reaction from the entertainment industry.
However, it’s worth noting that this rumbling may, in fact, be much ballyhoo about nothing. Although the district court did recently extend the deadline for absent class members to opt out of the deal for another four months, an “inquiry” by the Justice Department, concerns by various industry groups, or even objections by class members may not do much to scuttle the agreement. Under the rules of civil procedure as they relate to class action lawsuits, the district judge must approve the settlement agreement as “fair, reasonable, and adequate” before it can be implemented. If class members object to the agreement, the district judge will certainly hear their individual objections, but Judge Denny Chin, the Southern District of New York judge in charge of the fairness hearing, has no power to amend the agreement; he can only give a thumbs-up or thumbs-down ruling. And, although some have advocated for the district court judge in any class action fairness hearing to take on a more active, fiduciary role in looking out for the rights of absent class members, what district court judges must do to assess how fair the agreement is remains unclear. However, the fact that the two parties agreed to a pretty paltry–at least by $22-billion-in-annual-revenue Google standards–$125 million sum for the agreement does not bode well for the merits of the plaintiffs’ claims. Finally, if absent class members did, indeed, decide to opt-out of the agreement, individual authors filing separate (and seriously less financially lucrative) claims against Google might have a real hard time finding a plaintiff’s lawyer to take their case.
Objectors to the settlement agreement do have the ability to appeal the district court’s ruling on fairness up to the court of appeals and so this litigation might drag on for a little while longer. But unless a motivated class member who truly wants to disrupt the entire agreement can come up with a reason why the settlement agreement is fundamentally unfair, then the Google Book Search endeavor will continue to move towards fruition. And, I’m sorry, “Google is evil and bent on world domination” doesn’t work.
– Stuart Burkhalter
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