Freelance Objectors Show Court Similarities to Google Books Flaws

Below is the text of the appellants' letter submitting supplemental authority to the Second Circuit Court of Appeals. In the letter, Freelance objectors' attorney Charles Chalmers points the court to "highly pertinent" aspects of Judge Denny Chin's decision rejecting the Google Books settlement.


March 31, 2011

Re: IN RE: LITERARY WORKS IN ELECTRONIC DATABASES
COPYRIGHT LITIGATION 05-5943-cv
APPELLANTS’ LETTER SUBMITTING
SUPPLEMENTAL AUTHORITY - FRCP 28(j)

The Authors Guild v. Google Inc., 2011 U.S. Dist. LEXIS 29126 (S.D.N.Y. 2011) (“Google’). Several aspects are highly pertinent. The Google settlement involves licensing to Google of class members’ copyrighted works. As here, the license is non-exclusive. Google, at *8. The decision does not indicate whether the settlement allowed Google any right of sub-license. As here, the Google settlement granted licenses based on class members’ “silence.” Google, at *34-*37.

Judge Chin notes the Google license is contrary to the letter or spirit of the Copyright Act. Google, at *34-*36. 17 U.S.C. § 106(1), (3); 17 U.S.C. § 201(e). He noted that “’a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute.’” Google, at *36 (quoting, Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). Judge Chin notes that, as is true here, many class members will not know their works are being exploited. Google, at *39. Judge Chin does not hold that the Google license is prohibited as a matter of law. Rather he describes his concerns with its effect on the rights of copyright owners as one basis for his decision not to find the proposed settlement fair, adequate and reasonable.

Judge Chin holds that because it contemplates future uses of class members’ copyrights that are different, and more extensive, than the acts of infringement giving rise to the action, the “release” fails to meet the “identical factual predicate” requirement for class action releases. Google, at 3 (citing, Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 107 (2d Cir.). For the same reason he finds that the “release” fails to meet the “general scope of the pleadings” requirement under Firefighters. Id.(citing Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 525 (1986). Appellants make the same arguments, because the instant settlement also authorizes different and more extensive use of class member copyrights than is the subject of the action. Brief for Appellants-Objectors, p. 49; Appellants’ Letter Brief (6-7-10), p. 6-7; Appellants Reply Letter Brief (7-1-10), p. 5.