Sunday, September 20, 2009

Oct. 7 Shapes Up As More Important for 'Reed Elsevier v. Muchnick' Than for Google Books

"This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws."

With those words, the Department of Justice concluded a critique of the Google Books settlement that was a lot more comprehensive than has been reported. The government's antitrust division was expected to document serious concerns about that aspect of the
deal. However, I know of no one who reported in advance that DOJ's brief would be a three-pronged attack, also summarizing objections on grounds of copyright and Rule 23 (class action law).

I encourage everyone to read the document, which is viewable at

What happens next, of course, is up to Judge Denny Chin. But the Justice brief increases the speculation that the October 7 fairness hearing in Google will not be definitive. The government essentially reported that the settlement parties have talked with the attorney general's people in some depth and committed to going back to the drawing board. Whether these changes are spun as "tweaks" or a major overhaul is not important. What is important is that a bad settlement not achieve fast-track approval.

The Justice brief has references to Reed Elsevier v. Muchnick, which also has a hearing on October 7, at the Supreme Court. I will comment later on what those remarks mean and how, in my view, the two cases fit together.


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