At today’s [July 19, 2011] status conference in the Google Books case, two things happened. Judge Chin started threatening to put schedule pressure on the parties, and they let slip that they’re working on an “opt-in settlement.”
Michael Boni, speaking for Google and the plaintiffs, asked Judge Chin for more time, until the middle of September, to continue their negotiations. Unlike last time, however, Judge Chin expressed some mild impatience. He was concerned that this six-year-old case wasn’t moving forward, so he suggested that he might give the parties a deadline to make them negotiate a little more efficiently. Judge Chin suggested that he saw the case, if it were to be litigated, in terms of fairly straightforward cross motions for summary judgment on whether snippet display is a fair use.
In the process of trying to reassure Judge Chin that the negotiations were making real progress, while at the same time not promising any particular outcome, Boni then explained that the parties “have been aiming for an opt-in settlement.” What that might mean is not obvious. It could mean an actual opt-in settlement, one that binds only class members who send in claim forms. It could mean a settlement in which Google commits to an open-ended offer to all class members. it could mean a narrower, scanning-and-searching-only settlement, so that copyright owners can “opt in” to book sales by striking their own individual deals with Google. The terms and details of such a settlement could vary in all sorts of ways. But now we know that the parties are working on a narrower settlement.
A follow-up status conference is scheduled for September 15 at 11:00 AM. If the parties don’t have at least an agreement in principle by then, Judge Chin will give them a “tight discovery schedule.” He concluded by offering the services of a senior judge or magistrate judge to help in the settlement negotiations. The parties said they would discuss the possibility.
The preceding is re-published on TAP with permission by its author, Professor James Grimmelmann. “Google Books Search Status Conference: Opt-in Settlement in the Works?” was originally published July 19, 2011. The Laboratorium publishes under the Creative Commons License.