Thursday, February 18, 2010

Fairness Of Google Book Settlement Has Its Day In Court

Two-dozen blind people squeezed in line with lawyers, professors and journalists outside Judge Chin’s courtroom on February 18th, eager to attend the final Fairness Hearing on the Google Book Settlement. One man still had the store’s size tag stuck to his collar. For the blind, accessing more books is such an important cause that this gentleman had bought a new white shirt to look his best at the hearings. Once the courtroom filled, the remainder gathered their jackets, brief cases, white canes and guide dogs and navigated down 12 floors to the overflow courtroom until that space also filled to capacity.

Nearly 400 people marched past the AP photographer and Bloomberg TV crew who documented arrivals outside New York’s Federal Courthouse. Cell phones, laptops and cameras were not allowed inside. It was an exceptionally large crowd, the bailiff said with a sigh. “It’s like a class reunion of copyright geeks,” one professor added, describing the scene as the rock stars of the Copyright Bar mingled with their former and future teachers, students and colleagues.

As if decided by coin toss, supporters of the settlement lead the verbal presentations, making their case … at times, too fast for the court recorder to keep up with each rapid-fire soliloquy that was compressed to fit strict time limits. The opposition followed next with their own salient points. The crowd listened intently to every word.

Judge Chin set the tone of the hearings, at times with a sense of humor, which was welcomed by all amidst the heartfelt debates on legalities, such as whether the “identical factual predicate doctrine” is more applicable to the case than the “fireman’s test”. When the Commonwealth of Pennsylvania argued that royalties for orphaned works should be treated as “unclaimed property” and controlled be each state, he pointed out that BMI and ASCAP both comply with state laws in this way. Judge Chin quickly quipped, “They probably comply with U.S. copyright laws too,” and laughter rolled through the courtroom.

Judge Chin was in control and kept the ball moving briskly forward, even accidentally skipping the statement by before backtracking to include it. Judge Chin at times chastised speakers for their self-aggrandizing statements or redundant oratory, insisting that people stay on subject and clearly state their case for or against the Google Book Settlement, which all agreed could radically change how book content will be monetized and consumed in digital form in the future.

If there were a main event, it would have to be the presentation by the Department of Justice, which represents the official opinion of the United States of America in such proceedings. Mr. Cavanaugh stated firmly that it is inappropriate to include forward-looking business models in settling class action damages for past infringements. Google’s attorney stated the opposite with equal gusto.

Judge Chin will make his ruling in the coming days after considering all points of view. He will include a supporting opinion that explains his ultimate decision, which could accept or reject the settlement, or send it back to the parties for revision.

(This is part one of a two-part series by Randy Taylor of The Copyright Registry at, who attended the Google Book Settlement Fairness Hearing on February 18, 2010. Part two is Legal Arguments At Google Book Settlement Fairness Hearing.)

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