SDNY - Google Books Settlement Rejected, A Waste for the Blind

Hon. Denny Chin - Photo Sue Kim Wikimedia Commons

Below is the lengthy decision by Circuit Judge Denny Chin rejecting the Google Books class action settlement.  Class actions are governed under Rule 23 of the Federal Rules of Civil Procedure.  Rule 23 derives from the common law writ of a "bill of peace" -  that is - to settle a person's rights as against the world and to quiet title.   But Google didn't get any peace and quiet, even though Judge Chin acknowledged that under the applicable legal analysis, many aspects of the settlement were fair and acceptable.

But as a legal matter, Judge Chin had the most trouble with two aspects:  1. settling future claims and 2. the high number of opt outs.   On the first point, Judge Chin simply concluded that any settlement that purported to transfer or limit the rights of copyright holders such as owners of orphan works would be better handled by Congress.   This is the aspect of the case that will be the most troublesome to Google - if the court is powerless to award relief prospectively, they can't go back to the drawing board and just settle.  Judge Chin's language regarding Google's copying of the books is hostile and he appears to accept the sanctity of an author's right to leave a book unread.

Since there are rights to make fun of, to criticize, to comment upon copyrighted works once an author puts a book out into commerce, I wonder that Google has not developed some stronger arguments than what I have seen.   Under the common law, if you let the land lie fallow and someone else plowed it, you got it under the doctrine of adverse possession.    See also the doctrine of waste.  Query whether the public - the ultimate beneficiaries of the copyright reversionary interests (into the public domain) is damaged by a failure to exploit literary works, particularly scholarly non-fiction that have already been published.

The decision also concedes that the blind, who have no other access to out of print or print-only books, are hurt the most by the rejection of the Google settlement, and the conflict between academics, who want their works accessed, and their publishers, who want to be paid.

Soon we will see the Google lobbyists flock to Washington, DC.   The blind should be leading. 

Chapter 11 of my Copyright Litigation Handbook (West 2010) covers class actions.  Decision link below:

Authors Guild v Google 03 22 2011


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Filmon.com Solicits Plaintiffs For Limewire Piracy Class Action Against CBS and CNET

More information here
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

SCOTUS: Does Failure to Register A Copyright Deprive a Court of Subject Matter Jurisdiction?

In re Electronic Database Litigation, 509 F.3d 116 (2d Cir. 2007) cert. granted March 2, 2009.

Does 17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts

over copyright infringement actions?

Section 411 is the "register before you sue" rule.

The U.S. Supreme Court has granted a petition for certiorari on this question.   The Second Circuit, over the dissent of Judge Walker, vacated a class action settlement that authors and media companies had entered into after four years of negotiations.

The Second Circuit found that since the settlement covered unregistered copyrights (most of the authors writing for these publications), the federal court did not have jurisdiction to settle these claims.  

I indicated my agreement with Judge Walker's dissent in my December 2, 2007 post here

If you are interested in the rights of freelancers and the pros and cons of various settlements, check out Irvin Muchnik's Freelance Rights blog here