Delay Looming for Google Settlement Deadline?
By Andrew Albanese -- Publishers Weekly, 4/27/2009 11:49:00 AM
With the opt-out deadline just a week away, and with resistance stiffening, it now seems likely that at least some kind of an extension may be in the offing in the Google Book Search settlement. Last week, a group of authors and their representatives filed a request to delay the May 5 deadline. The motion—filed April 24, by attorneys representing the Palladin Group for John Steinbeck and Thomas Myles Steinbeck, Catherine Ryan Hyde, the Philip K. Dick Testamentary Trust, Arlo Guthrie, Michael W. Perry, Eugene Linden and James Rasenberger—asked the court for a four-month extension, with October 7 marking the new opt-out deadline, and with the hearing, now set for June 11, to follow at the court’s discretion.
Meanwhile, in response, attorney for the publishers’ sub-class, Michael Boni, said the authors’ complaint was without merit and asked the court to reject it. However, Boni said that "independent of" the authors motion, “plaintiffs and Google are amenable to a 60-day extension."
In his brief on behalf of the above-named authors, attorney Andrew DeVore argued that the settlement notice was both insufficient and defective. Notice only began in January, DeVore noted, a “woefully inadequate” period of time in which to “digest the extraordinarily complex settlement agreement and attempt to gauge its potential present and long-term future implications in a vital marketplace.” Further, DeVore suggested such notice was clearly defective because a dearth of “readily identifiable” authors remain unaware of the settlement’s requirements and that even “tech-savvy” authors and copyright experts who have received notice—including U.S. Register of Copyrights Marybeth Peters—are struggling to understand components of the settlement.
Boni countered that the Google notice has been “multi-faceted, exhaustive, and worldwide,” and most importantly, the content of the notice was already approved by the court. In his brief, DeVore suggested that the proposed 60-day extension by Google and the plaintiffs is “significantly less time” than the authors believe warranted. The motion comes days after Publishers Weekly's report last week that Gail Knight Steinbeck would seek such an extension.
In his motion, Devore makes a compelling case for additional time, but will his arguments be enough to prevail? “In a class action context, a court would be unlikely to grant an extension unless they could show good cause for the delay,” New York Law School professor James Grimmelmann explained to PW. “For example, that the class notice was so defective that they didn’t find out until very recently.” Indeed, given the amount of media attention the settlement has received, that may be a difficult argument to win.
The Google settlement, however, is “not a typical class action settlement,” DeVore argued. The classes are not only attempting to approve compensation for “past injury,” but, more importantly, he noted, the settlement is a decision about the future. "The scope of the proposed settlement is unprecedented," he writes, and would "cement" in place a rights scheme "for what may prove to be the most important and valuable channel for the distribution and exploitation of creative works."
