Thursday, March 04, 2010

Charting the Future of the Google Book Settlement

Here's a fantastic flow chart from Jonathan Band, an outstanding Washington IP lawyer, about where things may go on the Google Book Settlement ("GBS"). . It is fittingly called "GBS March Madness". But it is seriously realistic. And seriously complex.

However, I must assume that this was prepared before this week's US Supreme Court decision in Elsevier v. Muchnick, which ruled that federal courts do have subject matter jurisdiction over unregistered copyrights, thereby overruling the Second Circuit which is normally correct about copyright and which has been responsible for so much leading US copyright jurisprudence.

As I indicated yesterday, Justice Thomas' decision may have far reaching implications for the GBS, which appears to have been premised on the Second Circuit's now overruled judgment. Pam Samuelson's letter to Judge Chin, to which I referred, saw this coming and suggests that the lawyers for the subclass of authors should ask that the settlement terms be reconsidered or, failing this, that the Court should refuse to approve the the settlement until the class is redefined.

Although the parties must surely have foreseen this possibility, who knows what further unintended and unforeseen consequences may transpire? I wonder whether Jonathan's brilliant chart - which he already indicates does not reflect all possibilities - may need to be revised and transformed into three or more dimensions.


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