After nearly three years stumping together to get the Google Book Settlement approved, the parties in the scuttled deal are headed for litigation. At a September 15 status conference, Judge Denny Chin adopted a proposed pretrial schedule that, if followed, could have the case fully briefed and ready for trial by the end of July 2012. But at the conference, attorneys told Chin that talks were progressing—although differently for each party—raising the likelihood that the authors’ and publishers’ cases would soon be split.
At the hearing, AAP attorney Bruce Keller told Chin that publishers had agreed to the proposed pretrial schedule, but that substantial progress is being made between publishers and Google, and that the pretrial schedule could soon become moot for publishers. Google attorney Daralyn Durie echoed that expectation later in the hearing, telling Chin that the business principals, “not the lawyers,” were deep in discussion, and a settlement looked promising. In a statement, AAP president Tom Allen confirmed that the five publisher plaintiffs and Google “have made good progress toward a settlement.”
Authors Guild attorneys, however, were less sanguine about their prospects. Attorney Michael Boni told the court that talks with Google were continuing and that a settlement was still possible. It was clear, however, that Google’s negotiations with publishers were moving more swiftly. If the cases are split, it will be something of a return to the beginning of the legal action against Google, as the AAP and Authors Guild had originally filed separate lawsuits that were then combined by the courts.
For the moment the case remains whole, as Chin adopted the pretrial schedule proposed by the parties under a single order. Under the proposed schedule, the plaintiffs’ first brief, for class certification, would be due on December 12. Google’s rebuttal would follow on January 26. Discovery would aim to be completed by the end of March 2012, and motions for summary judgment, assuming there would be motions from all parties, would be filed before the end of July 2012. “So, we’re looking at another year at least,” Chin noted.
Meanwhile, there was some discussion of what issues a trial, if it happens, might address. As he did in the previous status conference, Chin suggested the case was about Google’s display of “snippets.” Attorneys for both the Authors Guild and publishers repeated their objections to that characterization, telling Chin that if the case proceeds to trial, the issue would not rest solely with Google’s display, but on its unauthorized “copying, scanning, and storing” of books.
The potential split between the parties is not unexpected. Since the sweeping, forward-looking class action settlement was rejected, the path to a new settlement has only become more difficult. In August, a Second Circuit ruling in another copyright class action settlement, known as In Re: Literary Works, raised significant class issues for the parties in the Google settlement. If the Google Book case is to proceed as a class action, New York Law School’s James Grimmelmann told PW, constructing new author classes that would pass judicial muster would be an arduous and costly task.
Perhaps more important, the authors and publishers have divergent interests and are seeking different outcomes. “The publishers would probably be content to let bygones be bygones,” Grimmelmann noted. “Maybe they will get a little money, but the benefit of settling is that all these large businesses could then go forward with certainty, which is what business people want.”
Since the publisher suit was filed six years ago, the e-book market has taken off, and the major publishers in the suit not only have partner agreements with Google, they also have a commercial framework in place—the Google eBookstore, which launched in December 2010.
The path is far less clear for authors, on the other hand, who this week widened their infringement claims by suing a collection of Google’s library partners [see story, p. 6]. “The authors,” Grimmelmann said, “have turned this into a matter of principle.”