Wednesday, October 7, 2009

Judge Chin Confronts the Scanning Problem

Although our judicial system may often seem to be prehistoric in its use of technology, there is at least one District Judge who is eager to confront the problem of turning print into digital.

Over seventy spectators, including lawyers, professors, students, publishing executives, authors, journalists, and at least one technologist coming to grips with the fact that mobile phones and laptops are not even allowed in the building, packed a lower Manhattan courtroom today to witness a "status conference" on the settlement of the lawsuit between Google, the Author's Guild, and the American Association of Publishers. The lawsuit began when Google began scanning and indexing out-of-print books without getting permissions from rightsholders.

Originally, today's hearing had been scheduled to be the fairness hearing for the settlement, which is partly explains why so many people attended such a mundane proceeding. A few even came all the way from Japan to attend. After a pointed "Statement of Interest" by the US Department of Justice, the parties to the settlement had asked for a postponement of the fairness hearing to make changes to the agreement, but Judge Denny Chin (who was just yesterday officially nominated for a seat on the court of appeals) was eager to keep the case on track and decided to schedule this "status conference".

Here are my notes; I posted them quickly (before the Phils game) and updated them later (after they crushed the Rockies, 5-1):

The judge's practical manner contrasted with the odd formality of the whole affair. He went straight to business, asked to "see where we are" and verified that the settlement agreement which had been submitted was in fact not on the table any more. He then asked for a status report on the deliberations. Michael Boni, lead attorney for the author's subclass, gave a prepared statement on behalf of all the parties. The parties have been working "assiduously", "around the clock", with the Justice department and representatives of all the parties. They intend to come up with amendments to the existing Settlement Agreement, and expect to have these ready by early November.

Although there was substantial work to do, they had the "full attention" of the Justice Department and hope to be able to satisfy its concerns. They intend to seek approval for a supplemental notice program substantially shorter than the original notice program, given that the amendments would be providing additional benefits to the settling classes. There will have to be time for class members to opt in, opt out or object, but they hoped objections could be limited to the amendments. A motion for final approval would occur in late December or early January. They acknowledge this to be an ambitious schedule. Boni noted that there is a deadline of January 5 in the current agreement for authors and publishers to claim books to be eligible for lump-sum compensation; the parties have agreed that this should be extended to June 5, 2010.

William Cavanaugh from the Justice Department then spoke briefly. He repeated that they had been in discussion with the parties, but would need to see the amendments before giving their support. He also requested that the government be given a week to 10 days after the deadline for objections to the amendments to prepare their position.

Judge Chin then said "I like this schedule. I think I agree with the concept that limited or supplemental notice is all that will be required", given that he'd received a "large body of thoughts for and against". Anything else would result in a delay of many months, which would not be acceptable to the court.

At this point, the dreary scheduling and status reporting having concluded, Judge Chin pointed out that he had not been on the case at its beginning, and hoped that the whole process could be made smoother than it had been. He complained about all the hard copies being sent around, over-burdening his staff who had access to just one small scanner. "Really. In this case of all cases, couldn't the submissions be electronic?" he suggested, to general amusement and relief. Maybe there could be an email address set up for submitting objections.

Michael Boni noted that there are requirements to "serve" the parties, and that his firm could be served via e-mail. Judge Chin interjected that no one had envisioned having over 400 objections, and expressed a desire to see only electronic documents.

Judge Chin wanted to cover all eventualities, and asked whether the parties had contemplated a possible breakdown in the negotiations, and asked whether discovery had occurred prior to the settlement talks. Boni reported that millions of pages of documents had been produced, but that no depositions had been done. Daralyn Durie, representing Google, reiterated that it expects that the parties will be able to present a settlement agreement.

Judge Chin then set November 9th as the date for submission of the amended settlement.

A final matter that I don't know the background of was that the American Society of Media Photographers had submitted a motion for consideration. Judge Chin would allow the parties a week to respond before he rules on the motion.

Update: The ASMP had filed a motion to intervene in the case. They represent a class that is in an odd position- they were originally part of the plaintiff class, but abruptly found themselves excluded from the settlement. So they want to have their bases covered so they can be sure to have standing to object to the settlement. Judge Chin ruled against all the motions to intervene, citing timeliness, but the ASMP asked for reconsideration, and filed an appeal. You can find all the motions at the Public Index.

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