Google Books Status Conference

by Kenneth Crews on October 7, 2009

This morning, at the federal courthouse in Manhattan, was the long-awaited “status conference” in the copyright case involving Google Books.  Everything about the morning signaled a sense of calm.  One of my student research assistants wanted to join me, and she arrived early to watch the sunrise while holding a place in line.  It was a beautiful morning in New York, and she was first at the court building.  Forty-five minutes later I joined her.  I was second in line.  This was not going to be a mob scene.  Even the security guards were friendly as they took away our cell phones and directed us to the 6th floor.

When we were greeted personally on the 6th floor by Judge Chin himself, we knew security sent us the wrong direction.  The judge cheerfully directed us to the 11th floor, but behind the door were several serious lawyers preparing for an important day.  We were crashing the confidential meeting, and happy to step away gracefully.

The 11th floor was also calm.  Slowly others gathered in the hall.  I chatted with a few familiar colleagues and a reporter from Japan.  At 9:45 the doors to the courtroom opened.  We had waited a long time, darn it, so we grabbed the front row.  Within minutes every seat was taken.

“All rise!”  It was about 10:10, and court was in session.  If you have to struggle with the law, federal court is the place.  Shiny new building.  Splendid dark paneling.  Judge Chin opened by stating the purpose of the conference was to “see where we are” and to “talk about” the direction of the case.  He looked to the lawyers for all parties, and they confirmed his statement that the currently proposed settlement is “off the table.”

The first attorney to speak was Michael Boni, representing the “subclass” of authors, but he spoke for all parties.  They have “worked assiduously” with each other and with the Department of Justice.  They have “gone a long way toward identifying and negotiating” a revised settlement agreement.  Then real news: The parties are “targeting early November” to present an amended settlement.  The parties would also propose a program for a “supplemental notice” to authors, publishers, and other rightholders in the class action.  However, he anticipated that the time period for the notice would not be as long as the time allowed for the original notice (about four months).  Why?  Because the new notice would emphasize the “benefits to the class.”

What does that mean?  It signals that the revised settlement agreement will generally be more favorable to rightsholders than is the current proposal.  Hence, if the class already has been notified, and if the new terms are better for the class, then perhaps another full-blown notice is unnecessary.

Mr. Boni continued: He painted what he called a “best-case scenario.”  If the parties submit a revised agreement in early November, he anticipates a fairness hearing in late December or early January.  He admitted that the schedule is “ambitious.”

More real news from Mr. Boni: The current proposal pegs January 5, 2010 as the deadline for rightsholders to make their claims for the lump sum payments covering past scanning and use of books.  The parties will be proposing an extension of that deadline to June 5, 2010.

The U.S. Attorney’s office spoke briefly, but deferred to the U.S. Justice Department.  The DOJ attorney confirmed “ongoing discussions” with the parties, but he has “not seen the proposed amendment” to the settlement.  The government asked the court to allow the DOJ one week, after the close of time for public comments, to review all comments and submit its conclusions.

Judge Chin then reflected:  He likes the suggested schedule and the plan for an abbreviated supplemental notice.  He said that he already has a “large body” of comments from interested persons, and that postponing the case for “many months” would not be acceptable.  In a light moment was the judge lamented that too many comments arrived in paper form, and his staff has been burdened for days scanning the materials for uploading.  “In this case of all cases!” he noted with irony, drawing a good laugh from the crowd.

He prodded the parties: Where are we if the settlement talks fail?  The lawyer for Google politely dismissed the notion, calling any talk of failure “premature.”

Judge Chin then made his decision for the day: He set the deadline of Monday, November 9, for the parties to submit to the court the revised settlement agreement, with a motion for preliminary approval of it, along with the plan for a supplemental notice.

The court adjourned at 10:25.  The sun was shining outside, and the conversations were again calm.  But lawyers headed into meeting rooms to plan the next steps.  I took my student to lunch.  On the subway back to the university, a man was reading a Chinese-language newspaper—with a picture of Judge Chin on the front page.

The calm will become frenzied review and analysis on November 9.

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