Before he began his remarks, Authors Guild attorney Michael Boni, being from Philadelphia, said he felt a little like local hero Rocky “being beaten about the head and face for 15 rounds.” But like Rocky, he added, he hoped to come back. It was indeed a long day for the settlement parties as they sat through an undercard of some 21 objectors who assailed the deal over the course of the daylong hearing. The main event, however, was the squaring off of two heavyweights: the parties, including Google, the Authors Guild, and the AAP) vs. the U.S. Department of Justice, which argued forcefully for the deal to be rejected. On Feb. 18, in an hourlong session before Judge Denny Chin, the two sides traded blows, as the Google settlement, after more than 14 months of wrangling, finally got its day in court.
As Boni suggested, it was not an easy day for the settlement parties, highlighted by the strong objections of the U.S. government. While saying the government applauds and encourages “mass digitization” efforts, Department of Justice attorney William Cavanaugh slammed the settlement, telling Judge Denny Chin that the class action vehicle was inappropriate, and that the settlement “turned copyright on its head.” Despite some tangible benefit, he said, “procedural rules cannot be used to modify rights.” He also told the judge that the DoJ has an active “ongoing antitrust investigation,” suggesting that if the judge does approve the deal, DoJ could still be a factor.
At issue, Cavanaugh stressed, is the settlement's “grafting on” a sweeping forward-looking business deal to a case that was to decide whether Google's “copying and snippeting” was fair use.“Either litigate the case as presented,“Cavanaugh stated flatly, or “settle the case as presented.” Cavanaugh noted that millions did not appoint the parties to be their “agents” in this digital rights matter, alluding to absent class members affected, and to orphan works. “If there's going to be a fundamental shift [in copyright law], if we're going to establish compulsory licensing,“ he said, “that should be left to Congress.” He also assailed the settlement parties' cited case law in support of the deal, specifically a 1986 Supreme Court decision on discrimination known as Firefighters v. City of Cleveland.
Boni, meanwhile, countered that the DoJ and other objectors were guilty of “extreme reductionism.” He told Chin that publishers were “alarmed by and afraid” of deep-pocketed Google's initial scanning program and fearful of its implications for the future of publishing and authorship, and that the plaintiffs had every right to address all of its fears, known or unknown, beyond the issue of scanning and searching. “To make this a case about copying and snippets,” he said, “is simply wrong.” He also touted the deal's benefits, telling Chin that close to 620,000 out-of-print books had already been claimed simply from the notice program, and that the Book Rights Registry, which would actively seek out rights owners, would “find a lot of the parents” for so-called orphan works. To a question from Chin, he said there have been 6,800 opt-outs and some 500 objections.
In her arguments, Google attorney Daralyn Durie argued that there was no harm in the settlement because “nothing about the settlement risks injuring the economic interest of absent rights holders.” She told the judge that approving the settlement was well within his power, and urged him to do so. She said there was no present danger that Google would monopolize the market for e-books, and reiterated that nothing was there to stop competitors from scanning books and including them in search results.
AAP attorney Bruce Keller wound up the plaintiffs' defense of the settlement, calling it a classic win/win. Keller refuted Cavanaugh's claim that the settlement would turn copyright on its head, calling the deal fair because it settles Google's past scanning by offering a license, gives class members a chance to opt out of the deal at any time, and even gives absent class members a place at the table by holding money for them.
For the most part, the 26 speakers that went before the main event (21 against, five for) emphasized points already made in their written briefs, and Chin seemed at times impatient, no doubt recognizing the long day that lay ahead and that the case would not turn on a stream of five-minute oral presentations. Some presenters urged the court to exert vigorous oversight of the deal, if approved. For his part, Chin gave only slight clues to his thinking, telling the parties at the outset of the hearing he had both “an open mind” and, at the end of the hearing, that he had “a lot to think about.” While engaged, curious, and at times, humorous, he was firm, moving the hearing along and giving little clue to which side he may be leaning. But the extraordinary complexity of the case was on display, as the objectors cited multiple legal issues: copyright, antitrust, privacy, and the adequacy of class action law. No time frame was given as to when a decision would come.
