GBS: Settle or Litigate?
A second post-GBSSv2 status conference occurred in the continuing Google Book Search settlement saga on Tuesday, July 19, in New York. The parties indicated, nor surprisingly, that they needed yet more time, and that the slogging was tough-going. Judge Chin, in turn, indicated a bit of annoyance and suggested that they better move on down a patch within a couple of months (by September 15, to be more precise). As James Grimmelmann noted at The Laboratorium, Chin also suggested that if settlement talks do not reach fruition and there was a return to litigation, the path would be clearly lit:
Judge Chin suggested that he saw the case, if it were to be litigated, in terms of fairly straightforward cross motions for summary judgment on whether snippet display is a fair use.
Michael Boni, counsel for the Authors Guild (AG), represented Google and the parties in the presentation before the court, as has usually been the case. As I have recently speculated, it would not surprise me to find that the AG are the only actors with any real skin in the game, due to the compensation expectations of their counsel. Notably, they remain just as handicapped in obtaining an approved class certification as before; neither ASJA nor NWU have suddenly swooped to offer support, and I see no sign that academic authors – whose interests were previously stated to be “inimical to the interests of the class” – suddenly espouse that a new revision would fall to their favor. Since the majority of digitized books are academic — from research libraries — one has to wonder who the AG thinks they are negotiating for.
It seems to me that the only benefit Google obtains from a new settlement is clean hands over the past claims of infringement for digitization, but if the only operation they conduct is snippet-view, there is not necessarily a requirement for all-party approval. One could well argue from Google’s perspective that they actually don’t want to establish a precedent for asking permission for a broad class of activities that have been elsewhere held as Fair Use when they have been litigated. Furthermore, the barrier of final class certification resides primarily in the house of settlement; it need not be invoked if snippet display was decided on motion.
Finally, the arrangement that Google made with Hachette Livre in late 2010, which has received inadequate attention in the United States, belies any assertion that Google requires a class action settlement to obtain relief for claims against commercial uses of works that are out of print. To a degree, a contract was the only course available due to the absence of class action in France’s legal system, but it demonstrates that acceptable results can be obtained through bilateral agreements. As an evident precondition, intent and willingness had to be present for any understanding to be reached.
If the case should return to litigation in the absence of any settlement, even for claims of past infringement, there would be a number of potentially interesting consequences. One of those is that archives, museums, library associations, and the Internet Archive –- the latter having been a particularly staunch opponent of the settlement — might actually wind up writing amicus briefs on behalf of Google in support of a favorable Fair Use finding. Far stranger things have happened in Silicon Valley.
