Google Bookscan

Proposed Settlement With Google

originally posted October 2008–whenever finally resolved

• Introduction
• Atypical Plaintiffs
• An Ass Out of U and Me
• Book Bigotry
• Procedural Tidbits
• How You Lose Matters
• No Professional Courtesy Here
• Notes

This extended essay assumes that you are familiar with the lawsuit itself. I commented extensively on problems with the lawsuit in an essay when it was first filed.

Introduction

On 28 October 2008, the Authors Guild¹ and Google announced a proposed settlement of litigation over the Google Library Project. The AG sued Google and the University of Michigan for their scanning of books in the UM libraries in 2005 without seeking prior authorization from the publishers, authors, or other rightsholders. The lawsuit was filed as a class action purporting to cover all printed works and their rightsholders.

As my earlier screed (linked above) makes clear, I think the lawsuit is fundamentally flawed. I am still working my way through the entire set of proposed settlement documents, but that is over 300 pages (including the appendices... at least two of which appear at first glance to silently modify substantive aspects of the main settlement document). It's definitely time for a major caveat:

What follows is commentary. It is not legal advice for your particular situation. Neither should it be construed as a solicitation of any kind. Conversely, even if you are potentially a member of a covered class, you are not required to pay anyone anything to process anything related to this settlement, unless you choose to retain counsel for that purpose.²

As of this date, the process for dealing with the proposed settlement will look something like this:

1. Beginning on 05 January 2009, a joint venture among the AG, several publishers, Google, and several major university libraries (the Settlement Administrator) will begin contacting those they believe are the rightsholders in books that have been scanned. Notification must be completed on or before 29 February 2009.
2. During the notification process, the various parties and objectors (see below) will be making both routine and nonroutine filings with the court. Many of these will be picked up on by observers with varying degrees of understanding of the class-settlement process. This will undoubtedly result in a lot of both informed and uninformed speculation and outright bloviation.
3. On or before 05 May 2009, anyone who does not wish to be part of the settlement must submit a short form to the Settlement Administrator opting out of the settlement. There will be no fee for submitting the form, and submitting the form does not require entering an appearance or retaining counsel for that purpose. Persons opting out may not object to the substantive terms of the settlement in court.
4. On or before 05 May 2009, anyone who objects to the settlement's terms and wishes to challenge them in court must do so in a formal filing. It will be up to the judge whether this requires a lawyer to appear for individuals, but in my considerable experience managing class actions (over 60 matters) both judges and the other parties will ignore an objection that is not filed by counsel. Anyone who files a formal objection will be bound by the settlement, whether or not it is later modified presuming that the court approves the settlement at all after considering the objections.
5. Some time after 05 May 2009, the court will hold a fairness hearing at which it will consider any objections raised, and even objections that the judge might raise on his own.³
6. Some time after the fairness hearing, the court will issue a formal opinion accepting, modifying and accepting, or rejecting the settlement. Only persons who actually objected to the settlement, or the named parties in the settlement, would be allowed to appeal any part of the court's approval, modification, or rejection of the settlement.

Of course, the court itself may modify any of the above dates. Next time, I'll begin diving into some of the many substantive flaws with this settlement. On balance, I think this settlement is not in anybody's best interests... but, as usual, the actual creators of content will be screwed most thoroughly. For a preview of part of my objection, you might be dubiously amused (and hopefully informed) by my academically oriented, math-fortified analysis of the orphan-works problem (link to abstract and downloadable PDF).

Atypical Plaintiffs

Before diving into the substance of the settlement itself, we need to reexamine another procedural issue: Class representation. Let's take a look at the purported class representatives and see how adequate they really are.

• It's relatively easy to dispose of the "representativeness" of the publisher subclass: It's not even close to acceptable. The publisher representatives designated in the proposed settlement (§ 1.125) are McGraw-Hill, Pearson Education, Penguin USA, Simon & Schuster, and Wiley. This isn't even close to representative of any of the following:
  • Specialty publishers, such as Ten Speed Press
  • Christian publishers, such as Tyndale
  • Publishers that are not yet in business
  • Publishers that have gone out of business without entering bankruptcy
  • Publishers that have gone out of business through bankruptcy
  • Self-publishers
  • Publishers not operating in the State of New York
  • Publishers focusing on reprint materials
  • Publishers of works primarily distributed through non-bookstore channels

  I won't belabor the point. The real problem is that all of the designated class representatives are publishing arms of multinational media conglomerates, and this is entirely unacceptable... and a big hint of the other problems with this settlement.

• It takes a little bit more work to dispose of the "representativeness" of the author subclass (also designated in § 1.125).
  • Paul Dickson has written "more than 50 non-fiction books and countless articles on a wide variety of subjects from toasting to ice cream to baseball to slang to Sputnik."
  • Joseph [C.] Goulden has written several works of serious nonfiction on twentieth-century American topics.
  • Daniel Hoffman has published eleven books of poetry, seven books of criticism, and a memoir.
  • Betty Miles "has written more than thirty books for children, including easy readers, picture books, non-fiction books and nine novels for pre-adolescent readers."
  • Herbert Mitgang is a historian strongly associated with the conservative Nation magazine.

  Once one looks at this list, though, some gaping holes in representation become extraordinarily obvious. Among the obviously missing are trade fiction, Christian publishing, educational publishing, textbooks, coauthors, drama, self-help and instructional, craft and trade, reference works, writers of derivative works, the anthologized, and so on. Put another way, this list of five authors has considerable overlap among the thirteen distinct economic niches occupied by authors... and only covers four of them (children's, poetry and criticism, contemporary affairs, and nonspecialized trade nonfiction). That is by no means "adequate representation," because it means that the authors fail both typicality and commonality of interests.

On this basis alone, this settlement cannot be accepted as appropriate. These problems could be fixed by changing the named plaintiffs, but then that would tend to upset the control of the suit desired by those running it... and might well lead to an unwieldy decision system. That, however, is my ultimate point: This settlement is an attempt to impose a one-size-fits-all uniform on interests that aren't even of the same species.

An Ass Out of U and Me

There is still one more step to take before diving into the substance of this bad settlement: Making the implicit assumptions explicit, and seeing if those implicit assumptions are valid. Here are the most critical ones. Some of them concern the procedural issues discussed previously, but most are at least partially substantive.

1. The administrative mechanism assumes that the publisher always controls the electronic display rights to the work. Conversely, most book publishing contracts are either silent on electronic rights (as in Rosetta Books), reserve electronic rights to the author, or have been terminated by the publisher for going out of print. This is a particular problem for the purported orphan works that form the stated justification for the entire Google Library Project. Thus, for at least a majority — and experience indicates a substantial majority, probably exceeding 75% — of the works that might be scanned as in university library collections (and an even higher proportion of trade books), this assumption fails.
2. The substantive underpinning of the entire settlement is that all books have the same "level" of originality — the flip side of "information wants to be free." I will discuss this in much more detail later; for the moment, just keep in mind that regardless of what information "wants," commercial storytellers want to be paid... and lurking underneath this entire assumption is a concerted refusal to consider Feist's implications and the fact/expression divide.
3. The settlement completely neglects the interests of an anthology/collection editor in the integrity of the book. This is a not-insignificant problem when the editor has added substantial creative contributions, such as introductions and afterwords, or addition of illustrations.
4. The settlement system presumes that all books, and all segments of books, have the same mechanical license value (cf. 17 § U.S.C. 115). That's right: Without ever admitting that this is what is being done, the settlement turns books into music, and creates ASCAP and BMI in one swell foop. Considering that ASCAP and BMI have had substantial antitrust problems in the past, the failure to even consider antitrust in the future operation of this settlement — especially for works that have not yet been contracted or published — is more than a little bit disturbing... and reflects poorly on counsel's ability to properly represent the various classes.

After clearing away this underbrush, the next time I will dive into the substance of the settlement. Sadly, it gets much, much more disturbing very quickly. Ultimately, the settlement represents a triumph of administrative convenience over substantive rights... and, naturally, the writers are the ones who get screwed the most, but the proposed system is really very unfavorable to everyone involved. Except the lawyers.

Book Bigotry

There is another critical assumption that lies underneath this settlement; it is so fundamental that it does not surprise me that virtually no commentator — let alone party — has mentioned it at all. It is also extremely simple to state:

All books are alike, in both commercial and copyright terms.

This assumption is blatantly false; however, seeing how it is false requires reaching well outside of the complaint to areas of publishing practice and copyright theory that remain rather obtuse.

It is easier to illuminate the publishing practices after dredging through the copyright theory, so we'll begin there. It is possible to look at the IP Clause of the US Constitution⁴ and draw an overbroad or incorrect conclusion here; nonetheless, that is the starting point. The IP Clause provides that "authors" shall have the "exclusive right" to their "writings." That, however, is far from the end of the inquiry; if taken literally, it would mean that no quotation of any kind would be allowed during the term of copyright. It is much too easy to stroll down the path of fair use⁵ in the hope that — as muddled as it is — some variety of fair use will answer the question for us. Unfortunately, as "easy" as that might be, it would be incomplete, because it would give insufficient attention to the underlying nature of the work being quoted.

That nature matters. The Supreme Court has termed this a "fact/expression" (or sometimes "idea/expression") divide, but it is probably more accurate to call it an "information/expression" divide, for two reasons: some of what would fall outside of "expression" is clearly opinion and not fact, and the term "information" dominates current usage — particularly in the internet context. In any event, the critical passage comes from a dispute over telephone books.

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. [W]e explained that President Ford could not prevent others from copying bare historical facts from his autobiography, but that he could prevent others from copying his "subjective descriptions and portraits of public figures." Where the compilation author adds no written expression, but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. No matter how original the format, however, the facts themselves do not become original through association.

This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it:

[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking…. [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.

Ginsburg [at] 1868.

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.⁶

The implication here — one that is usually made only at the border between "copyrightable" and "not copyrightable" — is that the strength of a copyright depends, in large part, on how closely integrated expression is with the underlying fact/idea/information. In turn, this feeds directly into the first of the four statutory fair-use factors, but as an indigestible snack. The indigestible part is this: When it comes to intellectual property, we must discriminate... and we must do so on broad categories that concern the content and the characters, not the color of the binding. The integration between information and expression is inherently different for a novel by John Updike than it is for a programming guide to MySQL. Similarly, the integration between textual and nontextual elements is different in a graphic novel from that in a cookbook. This is subtly acknowledged in the second fair use factor, which requires inquiry into the "nature" of the work.⁷

The commercial realities of republication of out-of-print works also reflect this distinction, although the publishing industry's historical practices (not to mention frequent business failures!) tend to mask this. Consider, for example, a twenty-year-old work that has been out of print for a decade or more, for whatever reason. It is certainly possible for a work of fiction to be republished unaltered,⁸ by a different publisher; one good example is William Gaddis's underappreciated The Recognitions, which did poorly on initial publication in the mid-1950s and received substantial acclaim on republication by a different publisher in the mid-1970s. Perhaps it does not happen often enough, given some of the dreck put out by publishers as "fresh" fiction today! Conversely, it is exceedingly rare for most types of nonfiction to be republished without some kind of updating... sometimes so substantially that the editor of the original edition would not recognize it as the same book.

Between the different quanta of copyright originality and the commercial realities of republication, one issue becomes clear: The mere fact that a work was published in a single bound volume does not describe its "nature" for purposes of either copyright or commercial viability. Instead, one must consider the content; perhaps not even at the level of the sixth-grade book report, but certainly in broad categories.⁹ The proposed settlement's utter failure to even acknowledge that a book, by any other copyright consideration, is not a book is by itself fatal to the proposed settlement's viability.

Procedural Tidbits

To avoid conflicts involving current and former clients, and due (in part) to professional courtesy during the badly designed (by the people who wrote the Federal Rules of Civil Procedure, not either the judge or the litigants) process involved in confirmation of class settlements, I refrained from adding to the essay in linear fashion for several months. That said, I was not entirely silent; and the following snippets relate to the essay, and will be referred to later on at least indirectly. Some typographical errors and transitions have been silently corrected.

• [19 Mar 2009] Predictable side effect(s) of the Google Book Search system and the relentless quest to ensure that every aspect of a business has an easily definable, quantizable return on "equity". The sarcastic might enjoy contrasting the legal and financial definitions of the term "equity." Or, of course, you could consider Jay Lake's dislike of the settlement and note that, but for never naming it, his discussion is entirely about the nonstatutory fifth fair use factor: administrative convenience.
• [23 Apr 2009] So, how is Google going to pay for the Google Book Search settlement? How about a £100 million tax avoidance scheme? Meanwhile, the Strange Bedfellows Department is recruiting a number of potential and actual objectors to the proposed settlement, including the Internet Archive, Professor Pamela Samuelson, and Cory Doctorow. Stay tuned as this gets even messier! I'll certainly be throwing a few mud pies of my own, in particular at the Authors' Guild's suitability as class representatives.
• [28 Apr 2009] The determination dates in the Google Book Search settlement have been delayed by order of the court (Chin, J.) (Docket No. 89). The new critical dates are:
  • Opt-out or file objection: 04 September 2009
  • Claim works: 10 January 2010 (no change)
  • Fairness hearing: 07 October 2009, 1000
• [29 Apr 2009] The DoJ has demonstrated that it has actually read its own bloody files (and, perhaps, every single antitrust-law casebook and treatise on the market) by opening an antitrust inquiry into the proposed Google Book Search settlement. This is not exactly a tough call, given that ASCAP and BMI are still operating under a consent decree negotiated after years of litigation with the government over antitrust problems; that the government drove the Society of Authors' Representatives (the predecessor of the Association of Authors' Representatives) out of business over antitrust concerns; that the DoJ has an open file on Google itself; and that European authorities are even more interested. Even my dog figured this one out.

  I'd say more about how the deafening silence on this issue in the proposed settlement papers implicates whether either class counsel or the named representatives are "adequate" under Fed. R. Civ. P. 23, but this isn't the right forum. I won't be remaining silent forever.

• [04 May 2009] An extremely important opinion implicating both In re Electronic Database Litigation (which I've referred to as Post-Tasini and is currently better known as Muchnick) and the Google Book Search settlement came out about an hour ago. Writing for a unanimous Supreme Court in Carlsbad Technology, Inc. v. HIF Bio, Inc., No. 07–1437, Justice Thomas held that a statutory provision regarding pendant claims is not jurisdictional, but at the judge's discretion. This is important because the language he cites as nonjurisdictional is quite similar to the language of 17 U.S.C. § 411(a)... which would definitely torpedo the restriction of the settlement classes to only registered copyrights.

  Continuing on that general topic, German authors speak against the GBS (and UK booksellers are also against it).

• [21 May 2009] GBS "news": Google agrees to give some libraries that provide books for scanning a say on price. Noticeably absent: Any consideration whatsoever of the provenance of the copies to be scanned. [....]

  Now that the Kindle provides access to blogs, some bloggers are finally objecting. It's sadly amusing to see this kind of post hoc reasoning being used to cover the substance of the dispute... if, that is, it rises to the level of a "dispute" in the first place, and not just horse-has-left-the-burning-barn posturing. Meanwhile, nobody is saying the "a" word ("antitrust", as the proposed license constitutes price-fixing per se), or connecting this to the Google Book Search settlement.

• [01 Jun 2009] Appellants' briefs will be filed today in Post-Tasini (aka Muchnick). Amicus briefs supporting reversal are due in a week; the opposing brief is due on 07 August. Why should y'all care? This case will try to answer this question definitively:

  Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

  Section 411(a) reads, in relevant part:

  [N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

  Historically — largely in reliance upon judicial (not legislative) interpretations of the 1870 and 1909 Copyright Acts — courts have tended to say that this is a jurisdictional requirement. IMNSHO, it's nowhere near "jurisdictional"... particularly since the 1976 Act knows how to say "jurisdiction" (such as in 28 U.S.C. § 1338(a), which was created in the same bill), and the language used looks like "administrative exhaustion" language from many other statutes, such as those dealing with employment discrimination claims. As I've remarked repeatedly before, it matters how one loses.

  Further, there's a troubling practical aspect to treating § 411 as a jurisdictional bar: It would place jurisdiction in the hands of a third party against whom the author has no practical remedy. A substantial majority of commercial publishing contracts for book-length works explicitly place the duty to register a work on the publisher. If the publisher fails in that duty, and § 411 is jurisdictional, the author has no copyright remedy against an infringer. If the publisher fails in that duty, and § 411 is a matter of administrative exhaustion, the author need only demonstrate that he or she has taken all the steps she is obligated to take under the contract to enable registration. (Of course, the actual doctrine of administrative exhaustion gets a lot more complicated than that, but that's my point.)

  Then there's the whole "substantial justice" issue, since § 411 doesn't apply to "non-US" works, thanks to treaty obligations. And it gets even more complex then... but the better answer remains "administrative exhaustion," not "jurisdictional." Of course, the best answer is to eliminate the registration requirement in the first place, which is unique to US law.

  Meanwhile, almost under the radar, Google put forth plans at Book Expo America to compete with Amazon by selling e-books, bringing the Google Book Search settlement much, much closer to the substance of Muchnick (in which the database aggregators and publishers sell access to articles) than anyone is really acknowledging.

• [19 Jun 2009] Google, in a remarkably stupid move, has already started modifying the publicly available feature set of Google Books in a way that by itself calls the fairness and propriety of the GBS settlement into question. This reflects the principle problem with the technology industry: The tech geeks and law geeks don't communicate before doing all that cool stuff. There's plenty of blame on both ends: The tech geeks seldom even talk to the lawyers... at least in part, and probably mostly, because the lawyers don't respond coherently (or quickly) when they do.
• [25 Jun 2009] One of the best possible reasons to object to the Google Book Search settlement is this inept, incredibly obtuse statement supporting the proposed settlement from the President of the Authors' Guild. He begins by misstating what a "copyright orphan" is (PDF), then proceeds to ignore the underlying economics of orphan works (PDF), the issues relating to transformative works and the parody/satire distinction, and finally winds up eliding both the marketplace problems from the authors' perspectives (rather ironic for a purported representative of authors) and the legal and ethical problems raised by the opt-out structure of the settlement.

  Ultimately, the problem — as I've pointed out repeatedly before — comes from a very simple failing: The Authors' Guild is not an adequate representative of the range of interests presented in this litigation. Mr Blount and the Authors' Guild represent a relatively small subset of the author "community" (which is a "community" in the same way that all of the cats in Manhattan form a "community"), and that subset has interests in inherent conflict with much, and probably most, of the rest of the community.

• [20 Jul 2009] And now, a short rant on Amazon's Kindle fumble. This really was Amazon's own fault. For years, the company has had a policy of dealing only with the "publishers"... and accepting anything that publishers say at face value. The face value of this particular publisher, though, was less than zero; just compare the whois results for the imprint to the whois results of the purported parent. There is no excuse whatsoever for a commercial operation — like a publisher — using an anonymizing registrar. There's even less excuse for using a different one for the imprint than for the purported parent. It took all of fifteen seconds to spot this, and no money. Then add in the dubious origins of one of those anonymous registrars... and Amazon never should have allowed that publisher to sign up; it could even have rejected it via an automated script!
• [21 Jul 2009] The European Commission has set hearings on the Google Book Search settlement for 07 September 2009 — two days after the opt-out period closes. Meanwhile, the BBC reports that some pirate sites are going "legitimately" commercial... but does not remark that most of that "commercial" activity is done without rightsholder permission. Even through B&N's new "multireader e-books" program, which really isn't any better vetted than I noted yesterday concerning Amazon's screwups.
• [24 Jul 2009] News that Random House is holding a very stiff line on payment for e-book rights isn't exactly news, but the even moderately intelligent should think "monopsony pricing" and scurry off to the Sherman Antitrust Act.
• [13 Aug 2009] William Morris has joined me in advising authors to opt out of the Google Book Search settlement. OK, that was a little bit tongue in cheek, but my opposition to the settlement has been pretty clear from the beginning. Here are the choices:
  • By staying in, an author allows Google to display the book. Forever. For $50 (or less for an "insert" — chapter or short story). This will also set the price if anyone else comes along wanting to do the same thing. And, arguably, if there are any trademark rights tied up in this (such as a unique character or setting), it will bar enforcement of the mark.
  • By opting out, an author prohibits Google from displaying the book. The author may then sue for a minimum of $750 in statutory damages — probably trebled for willful infringement — plus attorney's fees... and Google has admitted to the infringements. Google might try to claim "fair use," but copying an entire work almost never constitutes fair use (particularly without transformation of the content).

  Meanwhile, in Europe the deal is getting more and more scrutiny, with less and less approval (and that's just the publishers!).

  Of course, the Authors['] Guild is claiming that William Morris's concerns are bogus. I'd say that the AG's rejoinder is bogus... but it isn't that good, as it reflects considerable ignorance of copyright (and trademark) law, of civil procedure, of international law, and of publishing industry practices. Some "authoritative voice"!

• [04 Sep 2009] In some Supreme Court news that will definitely escape notice by those who haven't paid attention, Justice Sotomayór has recused herself from Muchnick (aka Post-Tasini, and yes this is a snarky snipe at the NWU for its incompetent handling of the matter the first time around). This makes the specter of a nondecision — a 4–4 division of the Supreme Court, which results in nonprecedential affirmance of the decision below — disturbingly likely. This is actually a civil procedure question that is indirectly related to the long-running battle to limit the workload of the federal courts by throwing out cases for "want of subject-matter jurisdiction" when, in fact, they're being thrown out for failing of proof. The real problem is that I see at least two solid votes for continuing the (incorrect and largely indefensible) reading of § 411 as jurisdictional, and a third vote probably leaning that way, just on that meme alone.

  IMNSHO, Justice Sotomayór was correct to recuse herself; fifteen years ago, she was the trial judge on the original Tasini matter, and bears some responsibility — although not nearly as much as do the lawyers on both sides — for the screwed-up mess that resulted in the Supreme Court's decision in Tasini itself. Further, she also voted to deny en banc (entire court) review of the Second Circuit decision in this iteration on the very issue before the Supreme Court in Muchnick.

• [17 Sep 2009] In an order issued on 16 September 2009, Judge Chin has established some parameters for the fairness hearing in the Google Book Search settlement brouhaha. In the order that y'all should care about:
  • The hearing will go forward on 07 October 2009 at 10am, as previously scheduled. {Doc. 716 ¶ 2}
  • Anyone who filed a timely objection must separately request the opportunity to speak, via e-mail to googlebookcase@nysd.uscourts.gov, to be received by close of business on 21 September 2009. The request must state the name(s) of the individual(s) to speak (not just the organization to be represented, although this is not entirely clear from the order) and state the interest in the matter (and should refer to the docket number of the objection/letter in support/amicus brief). The court plans to notify those selected to speak by 25 September. {Doc. 716 ¶ 3}
  • The parties proposing the settlement must submit written responses to the objections and amicus briefs by 02 October. However, no "reply" has been allowed for; that means that any misunderstanding, distortion, or misstatement of what an objector said can be dealt with only at the fairness hearing itself. {Doc. 716 ¶ 1}
  • All written submissions will be considered by the court, even from those persons and organizations not selected to speak at the fairness hearing. Depending upon the court's process, it may limit the time afforded to individual parties to speak... and, although it is not specifically stated in the order, it may not give the same amount of time to each speaker. {Doc. 716 ¶ 3}
• [19 Sep 2009] On 19 September 2009, the United States filed a brief opposing the GBS settlement (PDF) that doesn't go nearly far enough... but it is probably sufficient to cause Judge Chin to reject the settlement as it is written. The most interesting thing about the objection is the silent spaces. It does not discuss copyright law or theory anywhere... and, in particular, does not discuss any of the implications of § 411's registration requirement as jurisdictional (the law in the Second Circuit, although IMNSHO it's wrong) and how the Supreme Court's opinion in Muchnick (PDF) (due in the next nine months or so) will affect that. Further, it does not discuss the mechanistic conflict between an opt-out class and the fundamental inability to opt out of copyright.

  Somewhat more disturbingly — but not too surprisingly — the opposition does not extend its discussion of the adequacy of representation to intraclass conflicts in treatment of nonorphan works. This is an extremely technical, fact-intensive inquiry that is not really within the proper scope of inquiry for the United States in this matter. Similarly, the opposition brief does not discuss the interplay between antitrust law and the adequacy of representation issues... nor does it mention the elephant in the room, although that's not too surprising on a factual level; the US Attorney for the Southern District of New York probably doesn't care a whole lot about preliminary injunctions from a decade ago that have no criminal-law implications.

• [23–24 Sep 2009] The alleged plaintiffs have filed a motion proposing a delay in the scheduled fairness hearing date (07 October 2009) (PDF) so they can modify the settlement's terms after having a new orifice ripped in it by the United States last Friday. At least they're learning a little bit:

  Plaintiffs also are uncertain, at this stage, whether any additional form of notice, however limited, might be required. They cannot address that issue until the scope and effect of the amended settlement agreement on class members is determined.

  Mem. in Support at 3. As Homer Simpson might say, "Doh!"

  I see this as a strategic attempt to keep other parties from horning in on the action. Many of the objections raised have concerned inadequate representation by the named plaintiffs — a far higher proportion than normal, and far more searching and detailed in scope. As David Niven might have said, were this the Academy Awards, "I wouldn't expose my shortcomings in public." Nonetheless, these children don't want to share with the others... so they're going to try and short-circuit the process.

  If I were a particularly mean and nasty shark, already admitted in the Southern District of New York, with a particularly bloodthirsty client who provided better/more representation than the current named plaintiffs, I might file a motion that asked the judge to either hold the hearing as scheduled, limited to the adequacy of representation issue, or to reject the settlement and require appointment of new class representatives. However, I'm missing one of those qualifications... and it's not the "mean and nasty shark" one.

  Any relationship of this post to the following cartoon is purely intended.

  

  On 24 September 2009, Judge Chin granted the motion (PDF, signed but not docketed), deferring the fairness hearing that was scheduled for 07 October 2009. Unfortunately, the way his order is written makes sense to lawyers... but will scare nonlawyers into thinking that they're never going to be heard.

  The hearing has been converted to a status conference. Judge Chin's order states that he will hear only from the actual parties at the status conference, and not from objectors, class members, etc. I've already had one contact indicating that the reader — who is not a lawyer — thought this means the judge isn't going to hear from objectors at all.

  A status conference allows the parties to keep the judge up to date on what is going on in a case. The parties. At this time, the parties are the Authors Guild, the named publishers, Google, and the University of Michigan.¹⁰ Technically, not even the five inadequate representatives proposed by the Authors Guild are parties at this time, because the class has not yet been certified. Thus, it is entirely proper for Judge Chin to refuse to hear from nonparties during a status conference; I only wish that his order had not assumed a certain level of procedural sophistication.

  That said, IMNSHO, and all other things being equal — they aren't: given the pending nomination of Judge Chin to the Second Circuit, it makes a great deal of pragmatic sense to leave a clean procedural record for his successor, and that means interfering as little as possible with the parties at this time — I would have ordered the fairness hearing to proceed limited to the question of adequacy of representation. Adequate representation will be an issue no matter how the present parties modify their settlement agreement to meet certain third-party objections (in particular, the antitrust objections), and it seems to me that abstract judicial economy would best be served by dealing with Rule 23(b) issues now and deferring consideration of the merits to a later hearing.

  Reading the tea leaves a little bit, I think Judge Chin underestimated the passion that would pour forth regarding the proposed settlement. His order specifically does not provide for a presentation of opt-out statistics or anything else relating to those who opted out... and that's a bad sign for the proponents of the settlement, as that more-often-than-not-but-no-guarantees indicates that the judge is contemplating imposing another opt-out period for a substantially altered settlement. (Usually, the fairness hearing for an opposed class settlement will specifically discuss opt outs as part of the risk of the settlement not adequately covering the class.)

  Further down in the dregs of this particular teacup, things remain murky indeed. That is only all too fitting with this entire litigation, so I think we should be unsurprised. Were I Judge Chin, but not prepared to reject the settlement in toto, I would be making every effort to ensure that whoever gets stuck with this monstrosity after I (pretending to be Judge Chin) go through the confirmation process for elevation to the U.S. Court of Appeals for the Second Circuit has as clean a procedural posture as possible. The 16 September order is entirely consistent with that; by giving away as little as possible of the judge's thought process, it makes things that much easier for another judge to take over later.

How You Lose Matters

The Supreme Court has agreed to consider, and determine once and for all, the following question:

Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

For several purely procedural reasons, the Court's decision to finally decide this conundrum indicate that all process concerning the proposed settlement in the Google Book Search matter must be stopped, immediately, pending that decision. That means suspending the deadline for opting out; suspending the deadline for filing objections; and suspending the scheduled fairness hearing.¹¹ All of these dates need to be suspended until at least 90 days after the Court issues its opinion in Post-Tasini. (Properly, I suppose it'll get called Muchnick, but I can't resist pointing to what it actually is — sort of like my continued references to 2Live Crew instead of to Campbell.) In no particular order:

• The result of the Court's decision will force reconsideration of the adequacy of representation (Fed. R. Civ. P. 23 requirement). If nonregistered books have a claim, the current class representatives are plainly inadequate, and in fact have a serious conflict with a substantial part of the class. If, however, nonregistered books do not have a claim, that creates a conflict with the publishers who were obligated — by either or both of the publishing contract and industry custom, which under New York law is also part of the contract — to register the books.
• The result of the Court's decision will force reconsideration of the superiority of a class action. I do not even want to think about trying to administer a class action settlement structured even recognizably close to the present proposal if nonregistered US works are within the jurisdiction of the federal courts. Conversely, I do not want to be counsel to any publishers who forfeited authors' rights to attorney's fees, or even participation in the settlement, through the all-too-common failure to register since registration became "optional."
• If the Court decides that registration is jurisdictional — IMNSHO, this would be inconsistent with the IP Clause¹² — that will still leave an unconsidered class that is outside the scope of the question the Court has agreed to review: Authors whose publishers were contractually obligated to register, but whose publishers breached that obligation. This is a much more difficult question than one might think, because it involves not indemnification but the power of any court to enforce indemnification. If registration is jurisdictional, a suit for damages against a publisher claiming failure to register cannot be heard in any court: Not in state court, because the subject matter is not a mere breach of contract, but a Federal right; and not in Federal court, because the absence of a registration blocks jurisdiction there. Or, at least, this question is complex enough that it will have to be resolved... and the proposed settlement is not just utterly silent, but utterly ignorant, on this nonhypothetical set of circumstances.
• Google has made quite clear that it intends to digitize all books. That is, no matter what, this settlement does not actually restrain the intent of a party to continue infringing unrepresented parties' rights. For example, there does not appear to be any representation of works that, under the Copyright Act, are "non-US works" among the plaintiffs, and the requirement for registration in the settlement make things rather dicey for them... particularly for mid-twentieth-century authors whose works were first published in foreign nations and then either not registered in the US or (if required) not renewed in the US.

Thus, without even going to the (dubious) merits of the settlement, there are compelling reasons for the actual counsel in the matter to file a deferment motion with the District Court in the Google Book Search settlement, along these lines:

In light of the Supreme Court's grant of certiorari in the matter styled Reed-Elsevier, Inc., et al. v. Muchnick, et al. ("Muchnick"), No. 08-103 (cert. granted, 02 Mar 2009), which implicates the class definitions and scope of settlement in this matter, Counsel respectfully requests that this Honorable Court order that:

1. All proceedings, filings, deadlines, and other process in this matter be suspended immediately until the ninety-first day following the Supreme Court's dispositive decision in Muchnick; and

2. No further communications shall be made by any party to this matter, or any person or entity acting on any party's behalf, with any actual or potential member of the classes; and

3. All notices of "opt-out" received prior to the date established in point 1 above shall be returned to those parties with a notation that further proceedings will be required; and

4. This Honorable Court shall set a scheduling hearing promptly after the date established in point 1 above to reconsider all deadlines and filings in this matter.

I seriously doubt that will happen, though, given the... reputation of some of the counsel involved. It's the right, and ethical, thing to do; it's actually in the best interests of the absent class members; but it's simply not the style of the particular law firms and litigators, few (if any) of whom have the faintest idea of the unsophistication of the majority of those absent class members, as they're largely used to dealing with securities. (That's not to say that all holders of securities are sophisticated; it's only to say that authors, and their heirs, aren't — as "sophisticated" is defined in litigation.)

One of the major problems with the Google Library Project settlement is buried in the field definition: It is limited to books for which there is a valid, and renewed, copyright registration. This limitation comes from a long, misguided series of opinions — largely from the Second Circuit, and adopted without all that much independent analysis elsewhere — holding that § 411(a) of the Copyright Act of 1976 is a jurisdictional gatekeeper; that is, the certificate of registration is the sine qua non of federal jurisdiction over copyright claims.

This is clearly wrong, but understanding why requires both reading the whole statute and having some understanding of what subject-matter jurisdiction really is. It is, instead, a historical-continuity argument, because it continues the jurisprudence of what was properly before a court under the 1909 Act. I have always been under the apparently mistaken impression that one looks at the statute that applies now first.¹³ Instead, this line of cases from the Second Circuit — stretching back to the 1940s and an incoherent set of both district and appellate decisions regarding photographs, during the period when ownership of the master negative was considered ownership of the copyright itself — actually relies upon the appellate courts' collective merging of the certificate of registration and the copyright itself under the 1909 Act.

As I've mentioned before, this matters to the GLP settlement: A court cannot enforce a settlement over which it has no jurisdiction, but can enforce a settlement for incomplete claims over which it does/would have jurisdiction. Justice Thomas's unanimous decision for the Court earlier this week in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. ___ (04 May 2009) comes at this particular question rather sideways, but nonetheless instructively... because it implies that the Court is well along the path of not calling a statutory requirement "jurisdictional" unless the statute explicitly says it's jurisdictional.¹⁴ Although this does represent a slight retreat from the purportedly federalism-respecting trend of the early and middle Rehnquist Court, keep in mind that most of those decisions revolved around a subset of federal jurisdiction: State immunity.¹⁵

Although there is little doubt that the jurisdictional interpretation of § 411(a) represents the accepted wisdom, it does not represent a clear paradigm distinct from "that's the way it's always been". (It is well beyond the scope of this forum, but that is a valid criticism of much of the Second Circuit's copyright jurisprudence since adoption of the 1976 Act: That the past is to be followed, even in the face of both legislative and treaty changes since.) That jurisdictional interpretation is a fatal defect in the GLP settlement, which fails on procedure, on substance, and on simple fairness. Carlsbad Technology makes clear that "accepted wisdom" is not good enough for this Supreme Court on defining the jurisdiction of the courts... because the accepted wisdom (at least in the Second and Ninth Circuits, where a disproportionate amount of copyright litigation occurs) was that a remand of nondiverse state-law claims once all federal-question and diverse state-law claims had been dismissed (or otherwise resolved) was a "jurisdictional" decision insulated from appellate review (for reasons that we don't need to go into here).¹⁶ Carlsbad Technology, however, holds that it is an exercise of judicial discretion and not a question of jurisdiction per se.

So, then, what do all of those technicalities mean for the GLP settlement, given the grant of certiorari in Muchnick (the Post-Tasini parallel case on periodicals) to decide whether § 411(a) is jurisdictional? First, there's the timing issue. Since it is known to the judge — or, at minimum, known to all counsel who represent parties to the matter, who in turn have an ethical obligation to inform the judge — that the Supreme Court intends to rule by a date (relatively) certain on a critical limitation in the definition of the field for the GLP settlement, it would border on an abuse of discretion to continue proceedings that depend upon the Supreme Court ruling a certain way.

Second, there's the substantive question of how this matters to the settlement itself... which, as I've indicated previously, is not nearly clear enough to justify certifying any class, let alone an opt-out class with the inadequate notice being provided. It also brings in the spectre of cross-claims between members of the respective classes when a publisher did not register a work that was scanned; despite the three hundred pages of obfuscation in the settlement documents, there is no consideration of this problem whatsoever, even though it is clearly implied by Morris (the decision that "justifies" the restriction to registered works), and for that matter Tasini itself.

Third, we need to preemptively ignore anything that the Register of Copyrights has to say on the matter. This is a matter of institutional conflict of interest: The Copyright Office's main income source is registration and other service fees it charges, and this financial interest in encouraging a formality that is at minimum in tension with US treaty obligations under the Berne Convention should at least give one pause when considering the Register's position. (That the Register has, since the mid-1950s "studies" supporting changes to copyright law that would eventually become the basis for the 1976 Act, virtually always acted consistent with that financial interest should not surprise anyone.) I have no doubt at all that the Register's position in front of the Supreme Court will/would be that § 411(a) is jurisdictional; Ms Peters and her staff have made that all too clear in past presentations, including amicus briefs to other courts. Ms Peters and her staff may well honestly believe that interpretation correct, but rejecting the views of a captured agency does not require imputing knowledge or bad faith.

Fourth, and last for now, we need to start by interpreting what § 411(a) says without relying on tradition, instead of the other way around. Reading the actual language at issue — and comparing it to § 301 — calls the intellectual basis of the GLP field definition into severe doubt, and therefore the viability of the entire settlement... if only because none of the proposed representatives has interests typical of or in common with authors whose books were not registered (for whatever reason).

No Professional Courtesy Here

Thus far, out of professional courtesy, I have focused on the inadequate representation offered by the named plaintiffs. Recent events — particularly those after the extension of the opt-out date — have tipped the balance against continued professional courtesy.

Adequate representation, as required by Fed. R. Civ. P. 23 (not to mention basic concepts of due process¹⁸), clearly includes the question of whether the proposed representative plaintiffs provide adequate representation of the class. This does not, contrary to what many defense counsel continue to assert despite clear Supreme Court precedent to the contrary,¹⁹ require that class representatives have extensive technical knowledge of the complaint, the defenses, or anything else; it requires only that the class representative be capable of protecting the interests of the absent members, primarily through the ability to make decisions. That, however, is no excuse for the Authors' Guild's prominent position in this litigation. Although the Authors' Guild's name remains in the caption, as a procedural matter it should not: The AG is not a named representative. Similarly, the Executive Director of the AG is not a named representative. Neither is the AG the counsel to the class. Thus, the AG should not be making public advocacy statements concerning the merits of this specific piece of litigation... and certainly should not be doing so "on behalf of" either the named plaintiffs or the absent class members.²⁰

The AG's behavior is troubling enough; plaintiffs' counsel's conduct has been downright disturbing. Without specifically questioning counsel's professional judgment in entering into the settlement in the first place — I wasn't in the room negotiating, so I do not know what the negotiating posture, the details of resources committed to litigation, or any of a myriad of other factual circumstances behind whatever advice offered to the actual, decisionmaking client included — the post-settlement procedures have indicated not just disdain for the rights of absent class members, but questionable professional advice, conduct, and competence. A nonexhaustive list of problems arising strictly from the administration of the settlement includes, in no particular order:

• Failure to advertise in periodicals or on websites aimed at writers and/or their successors in interest; instead, counsel has relied upon general media coverage. This might be cheaper; it sure as hell isn't reaching everyone it is required to. Of course, this is merely a subset of the fundamental problem with adequate notice to absent class members — which is counsel's job — that underpins the entire settlement structure.
• Failure by counsel to ensure that proposed class representatives actually represent the interests of absent class members. My initial discussion previously is, perhaps, overly technical; suffice it to say that nobody is representing the authors of orphan works... almost by definition.
• Failure by counsel to ensure that the web-based opt-out form provides anything close to an adequate record of opting out to the author. Merely printing the webpage doesn't work; and the "message" received back upon opting out doesn't even acknowledge the time, date, or name of the person(s) opting out, let alone the scope of claims, the pseudonyms used, or anything else!
• Failure by counsel to ensure that the web-based claim form provides anything close to an adequate record of the claims made to the author. This is, perhaps, even more important than the problems described for the opt-out page, because it concerns actual entitlement to money from the settlement.
• Failure to adequately police the list of materials potential subject to the settlement, which continues to grow long after the purported 09 January 2009 "cutoff" date.
• Lack of apparent experience as class plaintiff's counsel. As a former plaintiff's class-action counsel myself (involved in many, many settlements), one of the elements of the submission package was always an experience summary of each lawyer involved in the settlement, on both sides, and an experience summary for any outside administrator hired for the settlement. These were not full resumés, but they certainly identified the individuals to help determine representativeness and ability to assist the actual parties in resolving their disputes. Either I've managed to miss a tiny part of the extensive settlement papers, or nothing of that nature was submitted at all — and I've reviewed the papers several times looking for that material.
• Failure to counsel or advise, or (in the worst case) control, public misstatements of fact and law by the putative client (who is not the class plaintiff). Bluntly, the AG — particularly in response to public statements made by potential organizational objectors like the William Morris Agency²¹ — has continuously made public misstatements of fact and of law regarding both the foundation for, and provisions and implications of, the proposed settlement. Part of class counsel's job is to prevent such misstatements, or at minimum to ensure their correction in a timely fashion. And, although some of those misstatements might — in theory, by a particularly noninquisitive observer — be characterized as "mere disagreements," others are not: They are made from inexcusable ignorance... or worse.
• Failure to acknowledge Rosetta Books and the inherent, unresolvable conflicts between class members, both between the "author subclass" and the "publisher subclass" and within each subclass. It's not that the papers come to a different conclusion than I would, which would be bad enough considering that one member of the publisher subclass is still bound by the result of its settlement in Rosetta Books; it's the complete silence on the issue. That reflects not just incompetence, but improper motive.

Judge Chin is entitled to reject the proposed settlement on this ground alone, should the record actually before him support it. I fully recognize that there's a huge difference between "what I know" and "what Judge Chin has in front of him," and that Judge Chin must confine his grounds for decision to the record. I strongly suspect that there's enough in the record, though, to reject the proposed settlement on "inadequate representation" grounds just for these reasons... let alone the other defects, both substantive and procedural, that one can find without digging very deeply.

1. The Author's [sic] Guild has changed its webpage and most of its publications to remove the apostrophe over the last few years. However, the lawsuit itself is still captioned with an apostrophe, as are some of the corporate charter documents. It's rather ironic that an organization for writers can't even get the grammar of its own name correct (dammit, if I have had to struggle through the correct form of the plural possessive in half a dozen languages, an organization of writers should do so without being asked!). For simplicity, and consistency with the previous essay, I'll be referring to "AG" from here on.
2. Unfortunately, there is a small boiler-room industry of questionable operations that offer to "help" class members in major litigation with their claims — for a fee. In my experience, these scavengers harm a great deal more than they help. Although I have not yet seen any of them raising their ugly heads in this lawsuit — yet — the proposed settlement was announced only two days ago, so it's only a matter of time. Don't compound the problems with the settlement itself by letting someone make you pay, even if you decide that it's not worth it to you to either opt out or object!
3. The judge to whom this case is assigned has a history of scepticism of purportedly overbroad settlements.
4. U.S. Const. Art. I, § 8, cl. 18. I will be concentrating on US perspectives here, since this is US litigation (despite Google's intention to make it international). That said, what follows is consistent in broad outline with much foreign treatment of the issue, too. See, e.g., Baigent v. Random House Gp., Ltd., [2007] EWCA Civ 247, especially ¶¶ 62–66.
5. Under the 1909 Act, fair use was a judge-made doctrine. Under the 1976 Act, which came into effect in 1978 (don't ask if you don't already know — you really don't want to), fair use is defined in 17 U.S.C. § 107. Sadly, but all too typically, this definition is incomplete; in practice, the nonstatutory fifth factor — administrative convenience — appears to drive most decisions. Cf. C.E. Petit, Cost Allocation and Copyright Orphans (2006) (PDF). Of course, that fifth factor is also at the core of this lawsuit.
6. Feist Pubs., Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 348–50 (1991) (internal citations omitted, except for Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum. L. Rev. 1865 (1990).
7. 17 U.S.C. § 107 reads:

   Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

   (1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

   (2)the nature of the copyrighted [sic] work;

   (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

   (4)the effect of the use upon the potential market for or value of the copyrighted work.

   The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

   (emphasis added). The word "copyrighted" in the second factor should have been "copied" for clarity, as the fact that it is a fixed work makes it "copyrighted" under the 1976 Act. Instead, this wording reflects the paradigm of the 1909 Act... and, for a work out of copyright, it's irrelevant anyway.

8. For this purpose, correction of printing and publishing errors is not an "alteration." A substantial change to the text, such as adding another chapter, would be.
9. I will discuss how a work's nature may change during its copyright life later in this essay. This is an even more frustrating aspect that the proposed settlement completely ignores.
10. Clarification: The U of M is not named in the caption, but all of the elements of a cause of action against the U of M for inducing infringement are stated in the body of the complaint, and the body of the complaint itself identifies the U of M as a potential party.
11. Due to several considerations, not the least of which is that I have conflicts with the class and a party across the v. arising from past representation, I can't file such a motion myself. If I could, it would be in the judge's inbox by tomorrow morning (12 Mar 2009).
12. U.S. Const. Art. I, § 8, cl. 8. In recent jurisprudence, I am not aware of any purely administrative requirement imposed on a right arising through Congress's exercise of an enumerated power, other than those concerning passage of time (such as the time to file an appeal), that has withstood serious scrutiny as a jurisdictional prerequisite. This is yet another example of it mattering exactly how one loses...
13. This is a common explanation:

    Federal courts treat registration as a rigid jurisdictional prerequisite — even when the defendant's fault is otherwise incontestable. Defendants' conduct in reproducing the Articles, verbatim or nearly verbatim, is both abject and reprehensible. Nevertheless, plaintiff has failed to protect her own rights because she failed to obtain valid copyright registrations in the Articles. Although Morris had the foresight to contractually protect her ability to exploit her work for profit, she neglected to protect her ability to prevent others from doing the same. Because plaintiff has failed to show a genuine issue of material fact for trial, defendants' motion for summary judgment is granted with respect to her first claim for copyright infringement.

    Morris v. Business Concepts, Inc., 54 U.S.P.Q.2d 1561, 1563 (S.D.N.Y. 2000), aff'd, 259 F.3d 65 (2d. Cir.), later op., 283 F.3d 502 (2d Cir. 2001). But cf. Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (number of employees is a substantive element of the claim, not a jurisdictional prerequisite); Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. ___ (04 May 2009) (a district court's order remanding a case to state court after declining to exercise supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(c) is not a remand for lack of subject-matter jurisdiction).

14. This is far from the only similar problem in copyright law. For example, consider the problem of the parody/satire/fair use morass created by the Ninth Circuit's continued reliance on Air Pirates as good law... even though Air Pirates itself says that it's based in the 1909 Act, when fair use was a judge-made doctrine and not codified as it is now in § 107 of the 1976 Act, and that the Supreme Court had not yet explicitly held parody (for some meaning of "parody") as potential fair use in 2Live Crew. Cf. C.E. Petit, Cost Allocation and Copyright Orphans at notes 38–42 and accompanying text.
15. I can almost hear the whingeing now that Congress can't be expected to predict that the word "jurisdiction" is a magic one that must be included in any provision regarding jurisdiction. That argument ignores that Congress knew how to do precisely that in taking jurisdiction over copyright actions away from the state courts when it drafted the 1976 Act. See 17 U.S.C. § 301, 28 U.S.C. § 1338(a). These are not only proof of institutional competence... they were drafted at the same time, and in one instance in the same part of the same bill, as 17 U.S.C. § 411.
16. Which, in the GLP settlement, leads civil procedure geeks — like me — into the interesting, if hypertechnical, side issue of whether scanning at the University of Michigan libraries was somehow exempt from challenge... if, that is, the University of Michigan is an "arm of the state" of Michigan, a question left unanswered by the desegregation cases because they fall under the Fourteenth Amendment, not the Eleventh Amendment, for determining jurisdiction.
17. I'd like to think I know a little bit about this, as I've been grappling with it since a few days after I took the bar exam. Channell v. Citicorp National Services, Inc., 89 F.3d 379 (7th Cir.1996) (the one time I've won anything in front of Judge Easterbrook...). The Second Circuit is still sidling up to this question. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 445–47 (2d Cir.1998) (explicitly distinguishing its jurisprudence from the Seventh Circuit's). Ironically, at least three judges on the Second Circuit can sometimes recognize when a statutory change "has displaced, rather than codified, whatever validity inhered in the earlier view." Jones v. Ford Motor Credit Co., 358 F.3d 205, 208 (2004).
18. Don't blame the courts for this one: The enabling legislation requires both. Although I think PACER is one of the great bargains in American "cost-recovery" systems, it's still a minor annoyance. Congress should, instead, simply give the courts the money necessary to run PACER as a grant — in governmental terms, it would be chicken feed — and, more importantly, eliminate the sign-in-and-register requirement, which has some disturbing privacy implications.
19. No, I'm not going to put a typical legal-writing-style string citation to the two dozen or so leading opinions on the due process implications of "representation" here, especially since those relating to the professional aspects are even more couched in legalese and codewords than is typical for due process questions (and that's a pretty stiff standard). Instead, I'll just point to the reflexively ironic Hansberry v. Lee, 311 U.S. 32 (1940), which involved the author of A Raisin in the Sun and rejects the bindingness of litigation results reached without adequate representation. As an exercise for the student, consider the potential distinction in rights offered by the Google Book Search settlement based solely upon whether A Raisin in the Sun is, itself, in or out of print on the critical date.
20. Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966) (a class representative is still adequate if he or she relies upon advice of counsel for technical matters related to the complaint).
21. See, e.g., Brown v. Board of Education of Topeka (I), 347 U.S. 483 (1954) — a class action in which the NAACP refrained from the public-comment tactics engaged in by the AG in this matter.
22. Disclosure of non-conflict: I am not a fan of the William Morris Agency, but that is on personal judgment grounds related to other aspects of the agency's business. I have no conflicts with the agency, and to my knowledge there is no "former client" issue going either direction, nor even an adverse-parties issue.

Law and reality in publishing (seldom the same thing!) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
 

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