Saturday, February 20, 2010

Google Book Settlement Fairness Hearing

I attended three hours of the Google Book Settlement fairness hearing before Judge Denny Chin on Thursday.  The event was well-attended, with two overflow rooms filled to the brim.  In the courtroom I was in (the second overflow room) there were over 70 people.

28 objectors were slated to speak. I sat next to a very well dressed gentleman representing one of the objectors who had elected not to speak.  And indeed, many of the objections were repetitive.  But it was a great demonstration of the use of fairness hearings to open up a public dialogue.

One of the central objections to the settlement that is important from our perspective (the mass tort folks) is that the judge is overreaching in allowing this settlement to go forward.  This is a separation of powers argument - Congress should legislate a massive digital library rather than allowing Google to do this through the court system.  It brings up the age old question, what are the limits of adjudication?  Many of the issues raised there have been addressed in the mass torts context such as

1. Is this a litigation or a type of business transaction? (see William Rubenstein, A Transactional Model of Adjudication, 89 Georgetown Law Journal 371(2001)).  People opposing the settlement say that Google is using the litigation to do what is too costly to do on the ground - get permission from every rightsholder.

2. Is this class action transforming copyright law?  The way that class actions have an effect on the substantive law -- increasing the cost of remedy from the perspective of the defendant, allowing persons who would not otherwise bring suit to bring it (that is, enabling litigation), allowing defendant to get global peace -- is a topic that will soon be addressed in a very different context by the Supreme Court in the Shady Grove case.  Class actions do alter the substantive law by allowing cases to be collected that would otherwise proceed individually.  But does this mean they are impermissible?  In a recent book called Wholesale Justice, Martin Redish argues that this type of class action violates the Rules Enabling Act by altering substantive rights.  On the other hand (as Redish himself recognizes), the Rules Enabling Act's requirement that procedural rules not modify any substantive rights doesn't make any sense, as all 1Ls know from learning the Erie doctrine.  The question ought to be, is the way that this settlement interacts with copyright law in particular a problem?  This requires an interpretation and debate about the substance of copyright law and the importance of the default that the user actively seek permission of the copyright holders to our understanding of copyright. This is something courts are well situated to do.

3. Is this class action usurping the role of the legislature? This is the same question above - shouldn't it be the legislature that enacts copyright legislation?  If the legislature doesn' t want to act, its not the court's role to step in. This reminds me of the famous essays by Lon Fuller and Abe Chayes.  In his essay The Forms and Limits of Adjudication, Fuller argued that some types of cases are polycnetric disputes. "By this term he meant problems in which many points of decision were interlocked, so that the correct solution of any one issue depended on the solution for all the others. Perhaps the most important example of what he had in mind was the system of wages and prices, but he suggested that even deciding who should play what position on a football team raised much the same issue. "It is not merely a matter of eleven different men being possibly affected; each shift of any one player might have a different set of repercussions on the remaining players: putting Jones in as quarterback would have one set of carryover effects, putting him in as left end, another. Here, again, we are dealing with a situation of interacting points of influence and therefore with a polycentric problem beyond the proper limits of adjudication." (see summary here).  Chayes, in an article called "The Role of the Judge in Public Law Litigation" argued that judges do in fact try such disputes with multiple parties and complex issues and that this is appropriate. (see a summary here). 

What the fairness hearing demonstrated to me was the extent to which, contrary to the views expressed by Fuller and Redish, courts are capable of being a place where dialogue between multiple parties takes place -- and fruitful dialogue.  Furthermore, the lawsuit can spur an interaction with the legislative branch in which Congress sees that intervention is necessary.  


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