With the September 4 deadline to opt out of or object to the Google Book Search settlement just days away, the deal's critics and supporters have, as expected, ramped up the volume, giving Judge Denny Chin more briefs and comments to digest—and more speakers to schedule for the October 7 fairness hearing. Among major developments last week: attorneys for a group of some 60 authors—including literary scholar Harold Bloom—filed notice to appear in court to register their concerns and the newly formed Open Book Alliance, a broad coalition of Google competitors as well as author organizations and library groups, announced its intention to object to the deal. The United States Distance Learning Association, meanwhile, wrote to the court urging approval, and Sony asked to file a brief that would back the deal.
The September deadline represents a key moment in the settlement process—the date by which “any copyright owner who wants no part of the settlement has to opt out” or “any party who wants to support or object to the settlement” must step forward, explained New York Law School's James Grimmelmann. Simply put, if you don't opt out by that date, you are in. “At the end of the day on September 4,” Grimmelmann added, “we'll know what the battle lines over the settlement are, and who's on which side.”
Next Steps
Given the level of activity in recent weeks, it is also beginning to look like a final court decision on the deal will not happen quickly after the October hearing. “I would be surprised if it took less than a month, and I wouldn't be surprised if it took several months,” class member, objector and class-action lawyer Scott Gant told PW when asked how long it might take federal judge Denny Chin to rule on the complex deal. “Given the importance of the proposed settlement and the nature of the issues, I would think it will take a significant amount of time to issue a written opinion,” he said.
Gant is among an expanding roster that plans to address the court on October 7 in New York. A class action attorney with the prominent Washington firm Boies Schiller & Flexner, Gant explained how the process will likely unfold: Chin and his clerks will read and digest the briefs, letters and comments that were filed with the court by the September 4 deadline, and will then establish a list of speakers for the hearing, as well as the order in which they will appear. This will almost certainly include the settling parties, lawyers representing those with objections and nonlawyers, such as authors.
Gant said that while it will be difficult to get everything done in one day, he doesn't expect the judge to allow the hearing to spill over to an additional day. The hearing's length will depend on how many people are slated to speak and how much time they are allotted—something that won't be known until after the September 4 deadline passes. While the hearing will focus on legal reasons why the settlement is appropriate and within the rules of class action law (which Gant disputes), the judge has wide latitude in what he may allow, especially from the nonlawyer stakeholders who may address the court, and policy will almost surely be part of the day. After the hearing, Chin will take whatever time he needs to assess written and oral arguments and will issue a written decision. It is possible, however, that Chin could schedule additional hearings on specific issues.
It is also possible that the October 7 hearing could be postponed, especially given how much material the court will have to consider, and its complexity. Gant, however, said he doesn't expect a delay. He noted that when the Department of Justice informed Chin this summer that it was conducting an inquiry into the agreement, Chin gave the department's lawyers until September 18 to submit findings and reiterated the October 7 hearing date, details that suggest the court is eager to move along. “It wouldn't surprise me if [the hearing] was postponed,” Gant said, “but I think something unexpected would have to emerge in a written submission, or another matter would have to come up. I expect it will not be postponed.”
