Saturday, September 26, 2009

Grimmelmann on 'Party Crashers'

A blog reader points out that James Grimmelmann has "an even more interesting" post this morning about the Google Books settlement, headlined "Party Crashers." And he's right. See

Among other things, Grimmelmann meticulously breaks down the history of the involvement of the Authors Guild and its lawyer Michael Boni. Grimmelmann makes a point about this "plaintiff" that we made four years ago about the "associational plaintiffs" (including the selfsame Authors Guild) in the freelance case: it had no copyrighted works that were being infringed, and hence no standing to represent the class -- until a judge arbitrarily and capriciously decided that it did. Indeed, to the extent that the Guild has any interest at all, it's the bureaucratic one of maintaining good relations with the publishing industry in return for the resources and access it offers to members.

Like any academic or lawyer -- and especially like an academic lawyer -- Grimmelmann also gives us a lot of who-shot-John and lectures on procedure, some of it useful, some not.

I, personally, am not a know-it-all. Nor do I burst into tears every time someone tells me that what I'm trying to do is naive. I've been doing this stuff since 1994, when I was working in front of a computer with a 30-megabyte hard drive, a 2400 baud modem, and a dial-up connection. People said I couldn't find a big law firm to take on a class action for writers in 1997. People also said I couldn't get objections to In re Literary Works in Electronic Databases Copyright Litigation off the ground. Grimmelmann has a great educational conference scheduled, by the name of "D Is For Digitize." I have Reed Elsevier v. Muchnick, now before the Supreme Court. We're both leveraging our goals and interests from different angles.

Can a class action settlement, per se, create a royalty system? No. Can accumulated and well-managed class actions drive the policy outcome of a royalty system? Absolutely.

Grimmelmann is the naive one if he thinks the Department of Justice produced its impressive Google brief in a vacuum. There were more than 400 objections to the proposed settlement from around the world, and the attorney general and his people decided it was politic to file a "Statement of Interest" -- which, I must say, I find to be tremendously constructive overall.

On the subject of the uses and misuses of legal rigor, I always remember the brilliant example of A.J. De Bartolomeo, an associate at the San Francisco office of Robins Kaplan Miller & Ciresi when I was consulting for the firm on behalf of the plaintiffs in Ryan v. CARL, the first-ever class action copyright case on behalf of authors (and one of the twin inspirations, along with Tasini v. Times, for Reed Elsevier v. Muchnick).

In that role, I produced historical memos and recommendations filling more than a dozen loose-leaf notebooks. Some of them attached correspondence between publishers and writers, as well as detailed trade magazine articles about the electronic-database rights issues, dating back years, even decades.

In 2005, De Bartolomeo was now a partner in a San Francisco class-action factory that owned a piece of the action in the consolidated cases that became Reed Elsevier v. Muchnick. And in a declaration to the court in support of the settlement, De Bartolomeo blandly stated that there was "no" evidence of willfulness on the part of the infringers.

Just as there is "no" evidence of willful infringement by publishers, there is "every" chance that my letter to the attorney general can help move the ball down the field.


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