Grimmelmann Weighs in on the Google Book Search Settlement Hearing

Close analysis of each speaker; judge praised for pragmatic attitude

-- Library Journal, 02/22/2010

Three days after the Google Book Search Settlement hearing on February 18 (LJ coverage, Parts 1 and 2), New York Law School's James Grimmelmann, with help from his students, has posted on his Laboratorium blog comprehensive coverage and insightful analysis of each speaker.

From Part 1:

Hadrian Katz, speaking for the Internet Archive, then gave, hands-down, the best argument of the day. He spoke without notes, resting on the podium, and succeeded in doing what no one else before or after had or would: transcending the narrow specifics of the many legal areas at stake to give a compelling encapsulation of the case. Plenty of others spoke in outraged generalities; Katz linked his clear vision to the issues actually facing Judge Chin.

A single condition, Katz argued, would realize all the benefits of the settlement and resolve virtually all the problems. Approve it as is, but on an opt-in basis. Nothing in the parties’ submissions explains why the settlement would need to be opt-out. He pointed to footnote 8 of Google’s brief, in which Google argued that going to opt-in would “eviscerate” the settlement. “This is about the orphans,” Katz concluded. Look at page 8 of Google’s brief, in which they argue that opt-out is vital because it makes the market for these out-of-print works possible. “They knew they couldn’t find the rightsholders,” he argued: that’s why they need an opt-out settlement.

In an opt-in world, according to Katz, notice would be dramatically better because the parties would genuinely have a full incentive to locate copyright owners.

Grimmelmann's conclusion, from Part 2:

 I was impressed with Judge [Denny] Chin’s demeanor. He wore his intelligence and his authority lightly. His patience with the attorneys was, generally, inversely proportional to their self-importance. He didn’t ask all that many questions, but he regularly managed to put the attorneys on the spot with exactly the right question. On the whole, he stayed far away from the details and the specific tests; he seemed to be looking to garner parties’ clearest statement of their positions. He confronted them with difficult issues, but generally didn’t keep them pinned down once it was clear they couldn’t (or didn’t want to) address a question. His attitude was, by and large, pragmatic: he was looking for concrete problems and for specific solutions. I don’t have a much stronger read on how he is leaning in the case, other than to note that he is not signaling an urgent need to move quickly to a decision, and that he clearly recognizes which issues in the case are fundamental and which are tangential.

I expect a small flurry of motion practice in the next few weeks. Scott Gant signaled an intent to seek discovery on the notice; Amazon indicated a desire to brief its responses to the new cases cited by the parties last week. Based on his comments at the hearing, I expect Chin not to open up the case, procedurally in any significant aspects. I don’t expect discovery; I could see possibly some new briefing, but if so, under very strict page and scope limits.