Thursday, February 18, 2010

More on Google Settlement

At Google Fairness Hearing, DoJ Justice Slams Settlement

Andrew Albanese -- Reprinted with permission of Publishers Weekly 

At today's Google settlement fairness hearing, U.S. attorney William Cavanaugh slammed the Google settlement, telling Judge Denny Chin that the class action vehicle was inappropriate, and that the settlement "turned copyright on its head." Though the settlement may or may not offer tangible benefits, the U.S. attorney stressed, "procedural rules cannot be used to modify rights." He also told the judge that the Department of Justice has an active, "ongoing antitrust investigation" open on the settlement, suggesting that if the judge does approve the deal, DoJ intervention still could be a factor.

At issue, Cavanaugh said, is the settlement's "grafting on" of a sweeping, forward-looking business model in a deal that was to decide whether Google's "copying and snippeting" was fair use. "Either litigate the case as presented," Cavanaugh stated flatly, or "settle the case as presented." Cavanaugh noted that no one appointed the parties to be their "agents" in this matter, and even stated that making the settlement opt-in would not necessarily solve the government's issues with the case.

The strongly argued objections of the U.S. government came after a full day of bashing by objectors, who expressed a broad range of concerns with the deal, from class action, antitrust, and copyright issue to privacy and rights issues. Those arguments, however, were vigorously countered by lawyers for Google, represented by Duralyn Durie, and plaintiffs' attorneys Michael Boni and Bruce Keller. In his remarks, Keller refuted Cavanaugh's claim that the settlement would turn copyright on its head, calling the deal fair because it settles Google's past scanning by offering a license, gives class members a chance to opt out of the deal at any time, and even gives absent class members "a place" at the table by holding money for them.

Keller also blasted the deal's objectors for putting forth "illusory" issues and called the objectors' argument that the settlement should be restricted to settling claims over Google's copying and snippets a case of "extreme reductionism." He told Chin that publishers were "alarmed and afraid" of the deep-pocketed Google's initial scanning program and fearful of its implications for the future of publishing and authorship, and that the plaintiffs had the right to address all of its fears, known or unknown. "To make this a case about copying and snippets," he said, "is simply wrong." He said the deal was a "fair and reasonable" compromise that met the standard set forth in rule 23. Plaintiff attorneys also argued there was no antitrust issue, and said that if there was, they would know about it by now-a remark that drew a confused look from one of the DoJ attorneys.

For the most part, the 26 speakers (21 against, five for) said little new, and the case will certainly turn on the judge's interpretation of the law and the submitted written briefs rather than today's five-minute oral presentations. For his part, Chin was hard to read, beyond moments of clear impatience when arguments were repeated or did not address the specific issues of the settlement. He did seem to internalize the questions raised by objectors engaging in a Q&A with Boni for example, while hardly interrupting Cavanaugh. But at the end of the hearing, he offered only that he had been given a lot to think about.  

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