Thursday, August 20, 2009

Major Objection to Google Book Search Settlement Is Filed; Publishers Weekly, 8/19/09

Andrew Albanese via Publishers Weekly; Major Objection to Google Book Search Settlement Is Filed:

"The Google Book Search settlement has its first significant objection. On Wednesday morning author and attorney Scott Gant filed a 50-page objection with the court that claims the sweeping deal is an illegal expansion of class-action law. In a copy of the brief shared with PW, Gant, a Harvard-educated lawyer with more than a decade of class-action litigation experience, and the author of We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in The Internet Age (Free Press), argues that the settlement is a “predominantly commercial transaction,” that “cannot be imposed through the Federal Rule of Civil Procedure 23,” the order that authorizes class action.

Among his arguments, Gant asserts that the settlement:

Fails to satisfy notice requirements imposed by Rule 23 and the Fifth Amendment’s Due Process Clause

Fails to provide putative class members with adequate compensation

Fails to satisfy the typicality and adequacy requirements of Rule 23

Would vest Google with significant market power which it could not acquire without the settlement.

Raises serious antitrust issues that must be considered as part of this Court’s review of the Proposed Settlement.

Gant’s most damaging argument, however, may be that the settlement fails to safeguard the due process rights of absent class members as required by law—a potentially fatal blow to the settlement, because if upheld by the court, it would remove a critical foundation of the deal, under which Google would essentially obtain a license to works without the specific consent of the copyright holder."

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