In an order posted Wednesday, federal judge Denny Chin said the fairness hearing for the Google Book Search Settlement scheduled for October 7 will go forward, and acknowledged receipt of more than 400 written filings. In the order, Chin gave the parties in the settlement until October 2 to respond in writing to the filings, and laid out the procedures that will govern the hearing.
Those wishing to speak at the hearing have until September 21 to request time via e-mail, and will be notified by September 25 whether they will be permitted to address the court. In the order, Chin also said the court would review all the written filings in the case. One major filing, however, still looms—Chin had previously given the Department of Justice until September 18 to file its written comments with the court.
Bloomberg, meanwhile, reported that Google, publishers and authors are in talks with the Justice Department on ways to address any concerns the department may have about the deal.
As expected, a majority of the written filings are in opposition to the deal. However, a review reveals a wellspring of strong support for the deal, from organizations representing authors and the tech industry, to the disabled, such as the National Federation of the Blind, as well as a host of major universities and libraries, such the University of Michigan, Stanford University, the Cornell University Library and the University of Virginia.
“Libraries have worked for years in support of legislative solutions to the orphan works problem,” noted University of Virginia librarian Karin Wittenborg in her letter to the court, “but the history of attempts to address this and other knotty issues in copyright law has not given us confidence that the legislative process is any more likely to bring about practical, constructive change than the complex work of the parties to this class action.” Cornell librarian Anne R. Kenney told the court that the settlement would make most of the Library’s long out-of-print holdings not just findable, but available. “The potential benefit of this to researchers is inestimable,” she wrote. “For this reason alone, the settlement should be approved.”
In addition to a heavy reading load for the court, the deal took another twist last week, this one political. At a September 10 hearing before the competition subcommittee of the House Judiciary Committee U.S. Register of Copyrights Marybeth Peters criticized the deal, telling lawmakers it was “fundamentally at odds with the law,” and that it usurped a role occupied solely by Congress. Association of American Publishers’ Allan Adler told PW he politely disagreed with Peters’ assessment and said publishers would respond to Peters’ more directly in their forthcoming brief to the court.
It remains to be seen, however, what if any interest beyoned general oversight Congress has in looking at the deal at this late stage. Rep. Zoe Lofgren, a Democrat who represents Silicon Valley, suggested that Congress should stay away. “At this point, we don’t have a role to play,” she said, adding that the settlement was “the private sector achieving what we failed to achieve” in terms of legislation. Rep. Hank Johnson, a Democrat from Georgia, however, suggested that the settlement was a “classic case of legislating from the bench.” Adler said he believes it is unlikely the hearing will result in any action, and that all parties will have to look to the court for a determination. Whether the court looks to the Copyright Office, meanwhile is another matter.
On the positive side for the settlement proponents, the hearing offered an opportunity to make their case for the deal: in essence, that it would indisputably offer more access to more books than ever before in history, and that the massive public good of the deal far outweighed the individual greivances of rightsholders. In his testimony, Google’s David Drummond told lawmakers it would be unfortunate if the settlement discussion “devolved into hypothetical debates over class action law,” and that the deal represented “the progress of science to tackle copyright challenges and help ensure millions of out-of-print books do not fade into oblivion.”
In yet another twist last week, New York Senator Charles Schumer confirmed that Judge Chin will be nominated to the Second Circuit Court of Appeals by President Obama. That news kicked off speculation in some circles that Chin might eventually recuse himself, and yield the settlement decision to a third judge in less than a year. Chin inherited the settlement after Judge John Sprizzo passed away in December 2008. Chin’s order this week, however, would seem to silence those rumors. Nevertheless, despite Chin's insistence that the hearing will proceed, a delay is not out of the question, especially if the DoJ decides to intervene, or indicates to the court that it wishes to delve further into the settlement.