Thursday, September 17, 2009

Google Books Resolution Should Await 'Reed Elsevier v. Muchnick' Supreme Court Ruling

According to reports, Google is in discreet talks with the Justice Department to "tweak" the Google Books settllement, which is under fire on antitrust and other grounds. U.S. District Court Judge Denny Chin has received 400 submissions from objectors, opt-outers, and other commenters, and is said to be thinking about how to limit speakers at the scheduled October 7 fairness hearing.

Also on October 7, the Supreme Court will be hearing oral arguments in Reed Elsevier v. Muchnick.

The two cases are inextricably linked. Most pointedly, both involve the proposed use of a class action settlement to impose "compulsory licenses" on absent class members who do not affirmatively opt out. As new-tech legal expert and McArthur Fellow Pamela Samuelson, among others, has observed, this would be a breathtaking and unilateral change of law.

For Judge Chin to try to tie up Google Books in a neat bow on or shortly after October 7 would be a travesty of due process. The obvious interim solution would be to stay that case pending the Supreme Court decision in Reed Elsevier v. Muchnick. As I have said repeatedly, the underlying issue of our case -- which involves resolution of the illegal reuse on electronic databases of the works of freelance journalists -- is the way publishers have attempted to hijack the clear ruling and intent of the High Court in Tasini v. New York Times.

I also said, as long ago as this spring, that the Google Books deal had "bombed in New Haven" -- a reference to the pre-Broadway closing of a play that drew bad notices and attendance in previews. And you can't overhaul a bad script, score, and cast overnight.


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