Google Books: Scanning the Future

Despite this opposition, a deal still seems likely. The Justice Department could have effectively killed the agreement, but instead tempered its criticism of the settlement with praise for its aspiration, and even suggested possible fixes for some of the problems it identified. Lawyers for litigants Google, The Authors Guild, and the Association of American Publishers are scrambling to revise the settlement to address the Justice Department’s concerns. They don’t have long. Manhattan federal district court judge Denny Chin recently set a target date for the filing of an amended settlement for November 9, and said that a fairness hearing will likely take place at the end of December or in early January. At that fairness hearing, Judge Chin can either approve or reject the settlement, but lawyers involved in the process say that even a rejection wouldn’t be a death sentence for a settlement, since the judge could suggest specific fixes for a deal. (Whatever the outcome, Judge Chin’s involvement in the process is likely to end soon. On Tuesday, President Barack Obama nominated him for a seat on the U.S. Court of Appeals for the Second Circuit).

Given the scope, size, and sheer audacity of the proposed agreement-Google stands to emerge as the biggest library and bookseller in the world-the controversy doesn’t come as much of a surprise. Lawyers who have studied the terms say it is the most creative use of the class action mechanism they have ever seen. If replicated, some say, it could change how businesses use class action law to resolve disputes, and could even lead to collectivized solutions to copyright disputes in other media-music, photos, and journalism, for example. Fred von Lohmann, a lawyer for the digital rights group the Electronic Frontier Foundation, says the proposed settlement may encourage stakeholders to “stop worrying about control, and to start worrying about remuneration.