Google Book Settlement Round 2

Don't Hold Your Breath

The US government filed its Statement of Interest regarding the revised Google settlement yesterday with the District Court in New York. While the statement was signed by an attorney from the Antitrust Division of the Justice Department, several agencies including the Copyright Office reportedly contributed to it.

Tools of ChangeAs you may recall, the judge has only 2 choices: he can approve the settlement, or send it back to the parties for revision. He cannot modify it himself.

The US government statement advises the judge that the public interest would be best served by sending the settlement back, and points out that the revised version still suffers from the “same core problem” that afflicted the first version: “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”

The press reports that I’ve seen take the government’s statement as an emphatic thumbs down.

The judge has scheduled a hearing for February 18 in his Manhattan courtroom.

It is very unlikely that the judge will approve this version of the settlement. Also, he may once again decide to postpone a full-fledged fairness hearing-although the many objectors, large and small, are eager to have their day in court. Because the parties withdrew the proposed settlement before the originally scheduled fairness hearing occurred in October 2009, the judge has not yet formally considered the many objections filed to date on the revised settlement or those filed in anticipation of the fairness hearing cancelled last October.

Bottom line for the long term: even if the judge sends the settlement back, and even if the parties agree to deadlines as short as the deadlines for this presumably ill-fated revision, there is no resolution in sight for the litigation.

Whether the case is tried or the settlement discussions continue, the legal end point will not be the trial judgment or settlement approval issued by the district court judge. The end point will be the disposition of the final appeal from that district court judgment or approved settlement, and that disposition is years away.

It’s hard to imagine what relevance the final legal disposition would have then, as public and private innovators are not sitting on their hands, waiting for the judge to sort this out.

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