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Wednesday, November 05, 2008

Will the Google settlement be approved?

Andrew Albanese, On Track to Approval, Google Settlement Faces Legal Hurdles, Library Journal, November 4, 2008.  Excerpt:

With last week’s settlement, four years of wrangling between authors, publishers, and Google is ostensibly over. Now, however, the battle turns to getting the sweeping class-action settlement past the various class members, and a federal court....

“This is not the final word,” blogged Duke Scholarly Communication officer Kevin Smith, hinting at the winding legal road that now lies ahead for the settlement —beginning with the parties themselves. “The plaintiff classes in this class action suit are very large, so the process of notification will be complex and it is likely that class members will object and want to discuss changes in the agreement.”

Washington-based attorney Jonathan Band...told the LJ Academic Newswire the size of class in this settlement —encompassing publishers and authors of millions of in-copyright books— was not unusual. “...The fact that the Authors’ Guild (AG) represents 8000 authors suggests that this class has more real representatives than most.” 

On the other hand, the Authors Guild’s stated 8000 members represent but a tiny fraction of the authors included in Google’s program. The Association of American Publishers (AAP), meanwhile, which pursued the legal action on behalf its members, represents some 260 publishers. While that includes all of the major houses, and many mid-to-smaller houses, that is but a small slice of a historically diverse book publishing universe —and notably, a number of both groups’ members opposed the suits from the start....

Perhaps, but both AAP and the AG will note that copyright owners who disagree with the settlement can simply opt out of it....May 9, 2009 has been listed as the opt-out deadline....If large numbers balk, it could threaten —or, at least change— the settlement....

The judge also will weigh the settlement against the law, and, as with all things copyright, that’s a wildcard. In the recent Tasini settlement proceedings..., a federal judge quashed the proposed deal as inconsistent with the law, even though no party raised the issue the judge used to reject the settlement, and both parties to the suit, and the settlement’s objectors, disagreed in briefs with the judge’s reasoning....

Band says he has no predictions about how the approval process will go for Google. “A court’s main objective in reviewing a class action settlement is to make sure that the settlement actually is in the interests of the class,” he noted, “and not just the lawyers representing the class.” ...