Sunday, April 25, 2010

Judge Presiding Over Google Settlement Moves Up; Publishers Weekly, 4/22/10

Andrew Albanese, Publishers Weekly; Judge Presiding Over Google Settlement Moves Up:

"In yet another twist in the Google Books Settlement, the judge presiding over the deal's approval, Denny Chin, was confirmed by the Senate for a seat on the Second Circuit Court of Appeal, 98-0. Although it is unclear exactly how Chin's promotion might affect the Google Settlement, four immediate questions stand out:

First, does the appointment mean a settlement decision is coming sooner, rather than later? With Chin to take his seat as soon as possible, he will certainly want to expedite his current caseload as much as possible. On the other hand, Chin may choose to pass the case on to another judge entirely, which could delay a ruling. On his blog, Scrivener's Error, attorney C.E. Petit thinks Chin will likely pass along the Goolge ruling. "If Judge Chin isn't pretty well already done writing his opinion(s)," Petit summarized, "everything that is currently live in GBS is almost certainly going to be decided by somebody else."

Second, looking ahead, how might Chin's appointment affect the settlement's appeal process? Many suspect that whatever Chin's ruling, it will be appealed to the Second Circuit-the very Court Chin has just been appointed to. Chin will certainly have to recuse himself from the appeal.

Third, the recently-launched visual artists' suit against Google will be impacted. Chin was assigned to that case as well, and a new judge will now be appointed. Given Chin's familiarity with the settlement, there will be some affect on the judicial economy of that suit. The suit, which seeks "monetary, injunctive, and declaratory relief," was filed after Chin denied a request by the artists to join authors and publishers' $125 million class action settlement as a party.

And fourth, could Chin could now be involved in the Muchnick v. Reed Elsevier appeal? That case was recently remanded to the Second Circuit by the Supreme Court. It could be fascinating to see how Chin's thinking on the Google settlement manifests itself in that ruling, or, if he recuses himself from that case, citing similarity. Muchnick v. Reed Elsevier stems from the long-running Tasini v. New York Times case, the settlement of which includes a license-by-default much like the one at issue in the Google settlement. "I believe that, from a practical standpoint, the root issues in [Google and Tasini] are identical," lead objector Irv Muchnick told PW in April, "and that they should be coordinated in some fashion."

While the publishing world knows Chin to be the man deciding the fate of the Google settlement, he is probably better known to the world-and the Senate-as the man who put Ponzi-schemer Bernie Madoff away. In addition, Chin, born in Hong Kong, is now the only active Asian-American judge on a federal appeals court. Chin's appointment had been held up by anonymous holds in the Senate. The Second Circuit Court is based in New York City, and most recently saw one its own, Sonia Sotomayor, rise to the Supreme Court."

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