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A "Judge Greene" of the Google Book Settlement? -- Handicapping the process' four outcomes

There's been scant analysis of how the Google Book Settlement process has been altered going forward given recent major developments:

  • The "hornet swarm" of objections to the Google Book Settlement, and 
  • Google's recent preemptive concessions on:
  • To date the discussion of outcomes has been largely binary, will Federal District Court Judge Chin approve or disapprove the proposed Book Settlement?

    • That frame has been overtaken by events.
    • Google effectively has reopened the negotiation of the settlement via its major public concessions in two substantive areas: privacy (from FTC pressure) and competition (from DOJ pressure.)
    • This is now a fluid negotiation where Judge Chin is less likely to be "the decider" and more likely is a political mediator and mini-Congress trying trying to resolve a multi-front, multi-party, multi-subject negotiation.    

    As I survey the altered landscape there appear to be four main types of outcomes.

    • The first outcome: Judge Chin approves the settlement as is.
      • This is becoming an increasingly remote outcome, given the hornet swarm of objections and the concerns of no less than three Federal entities: the DOJ, the FTC, and the Register of Copyrights.
      • Practically, to approve the settlement as is, Judge Chin would have to dismiss everyone's objections and become the practical defender of the parties to the original settlement; metaphorically, this would be like going from being the beekeeper to becoming the bee nectar.
      • This is not a very appealing, tenable or a likely outcome for Judge Chin.
    • The second outcome: Judge Chin could simply reject the settlement as is.
      • In this outcome the Judge could conclude:
        • The settlement is unworkable with  too many affected parties not part of the settlement; or
        • The settlement is inappropriate in requiring the Court to be a mini-congress and resolve the complicated ganglia of copyright, antitrust, and privacy policy -- all in one neat package that happens to leave out many of the parties claiming to have been aggrieved by the settlement.
      • This outcome, at least initially, is unlikely because at least at first, the court has an obligation to consider if the identified problems can be adequately "cured" by the parties and the court.
        • Moreover, courts exist to adjudicate tough questions and the court is unlikely to surrender unilaterally without exploring how amenable the parties are to accommodations and how "curable" the problems truly are.
    • The third outcome: Judge Chin could encourage the parties to reopen the negotiations under threat of disapproval and work behind-the-scenes to explore possible "cures" and ultimate resolution.
      • At this juncture this appears to be the most likely outcome -- at least for the weeks ahead. 
      • This is the outcome where the specter of famed "Judge Harold Greene" comes in.   
        • Judge Harold H. Greene was the Federal Judge who oversaw the breakup of the AT&T monopoly system.
        • Given the complexity, diversity, and number of issues that had to be adjudicated, Judge Greene was de facto a one-amalgamated- man: FCC, Congress, and shadow telecom CEO/Board of Directors.
          • To be fair, this situation differs in that it is not the U.S. Government that is suing Google at this point, but publishers and authors.
          • However, it is similar in that the parties are looking for Judge Chin to take on a similar Judge Greene-esque role as the one-amalgamated-man: Register of Copyrights, DOJ, FTC, Congress and shadow CEO/Board of Directors.     
    • The fourth outcome: Google could walk away from the Settlement.
      • Under this scenario, Google would argue that the settlement cannot get approved without unacceptable concessions.
      • Google would then be choosing to take its chances in court on the copyright suits that were proposed to be settled in the settlement. 
      • This is a new outcome that many may not have considered possible until now.
        • This outcome becomes more likely to the extent that the dynamic becomes like that of "opening a can of worms" -- because once released -- the many squirming worms become exceedingly hard to put back in the can.
          • What many don't appreciate is this Settlement as written is not limited to just the future of digital books, but it also implicates copyrighted photos, art, songs, plays, screenplays, comic books, audio books, and on and on and on...
        • Furthermore, these issues are likely to get more complicated over time as things change and inevitably new issues and problems come up.
          • This means that the court would be entrenched in a Judge Greene-like role overseeing these multiplying issue areas indefinitely or until Congress could legislate an end to the Consent decree like Congress ended the AT&T Consent Decree with the 1996 Telecom Act.
        • Lastly, a detailed court-supervised Book Settlement could involve as many as three Federal entities serving as quasi-investigators/regulators of Google's many related actions under the settlement:
          • The Register of Copyrights of the U.S. Patent and Trademarks Office of the Department of Commerce on copyright matters;
          • The U.S. Department of Justice Antitrust Division on antitrust and competition matters; and
          • The U.S. Federal Trade Commission on privacy matters.
      • Google's best defense if it finds itself in this enforcement/regulatory whirlpool could be to pick ups its marbles and go home and tell the authors and publishers "see you in the previous court."  

    In sum, the plot thickens.