Tuesday, April 28, 2009

Google Books And 'Muchnick' -- Their Similarities Are Different

I've already used the line, probably apocryphal, by Yogi Berra's son Dale: "Our similarities are different." Now I may as well milk it. Today's news about the request for an extension of the May 5 opt-out/object deadline in the Google Books settlement highlights another distinction between that case and our freelance journalists' case, now docketed at the Supreme Court as Reed Elsevier v. Muchnick.

The difference is that in "Freelance," it is the defendants who need the settlement more. In Google, it is the plaintiffs -- specifically, the plaintiff Authors Guild. Let me explain.

The AG's outside counsel, Michael Boni, was key in both cases. (Needless to add, Boni and all the other plaintiffs' lawyers in both cases really want their multimillion-dollar fees, which are contingent on successful conclusion of the settlements they helped engineer.) But in Freelance, AG and the other "associational plaintiffs" -- the National Writers Union and the American Society of Journalists and Authors -- had no direct economic interest in the shape of the settlement. They were just doing what they do best, or worst: posturing on behalf of writers' rights while worrying that if they pushed too hard, they would get cut off from the industry access and perks that are their big selling membership points.

The parties that needed the Freelance settlement, and what they called "complete peace," were the defendants. The infringers. Remember? They'd been doing it for decades, they continued to do it even after Tasini v. Times definitively ruled their practices illegal, and they continued to continue to do it even during the pendency of the settlement. Indeed, they're still doing it, and still expanding the scope and product lines of their systematic infringement, even as we speak. They have used the cover of "mediation" and the lack of resolution in this case as cover for creating more facts on the ground, which make it more pragmatically difficult to unring the bell of their willfully damaging conduct.

No matter what you think of Google, it is not the same as a classic publisher. Google is a tinkerer. It makes gadgets -- toys for manipulating information with technology. It's in the publishing business, but only in the sense that its vision of a Googleized world puts it at the center of every business of every kind.

Google is building Google Books on an infringing model: the now-familiar principle of "asking forgiveness, not permission." To be fair, though, the company has staked out a more-or-less-honest, avant-garde position, and is trying to use this litigation as one prong of its nouveau business model.

What I'm saying is that while Google wants a settlement, Google doesn't need a settlement, especially not one in this exact form.

The party here that needs a settlement is the Authors Guild. In order to fund and legitimize its Books Right Registry, AG has shown that it is willing to give class members terms inferior to what Google already offers directly through its Partner Program ... that it is willing to participate in imposing a de facto monopoly on Google's competitors and on information consumers ... that it is willing to bless an illegitimate license-by-default private rights algorithm, masquerading as a public-spirited "compulsory license" ... that it is willing to do all sorts of stuff you just can't use a class action to do.

It's interesting to note that at key points in the challenges to the Freelance settlement, the defendants were the ones who took charge and the plaintiffs were the ones who followed. Who played point on appellate briefs would be one example. The ridiculous settlement amendment grandfathering new infringing products, without adding a dime to the settlement fund, is another example.

But in the current crisis for the Google settlement, it is the Authors Guild and Boni who are trying to shout down the herds of protesters at the corner of Desperation and Ripoff.

Who filed the response to last Friday's letter motion to push back the deadline, from authors and authors' estates (http://www.inklingbooks.com/files/-settlement-extension-letter.pdf)? Why, Michael Boni, of course (http://www.scribd.com/doc/14685856/Ltr-M-Boni-to-J-Chin-42409).

"The arguments ... about the Notice Program are without merit," Boni rambles, because the notice has been "multi-faceted, exhaustive, worldwide in scope." Nonetheless, the parties are "amenable" to a 60-day extension. If everything is so hunky-dory, then why is Boni agreeing to any extension at all?

In a nutshell: Because the dude is vamping. His latest sellout settlement is also in trouble, and he knows it.

Irv Muchnick


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