AAP/Google, some answers

I recently spent time at a meeting that included lawyers, a class of folks who have the ability to understand some of the issues that aren't at all obvious to the rest of us. I learned some things that I would like to pass along. (BTW, if I get any of this wrong, would someone with legal background please send a correction!)

First, there were two things in the settlement that just didn't make any sense to me:

1. it covers all foreign materials, but only covers US materials that have been registered with the copyright office
2. it only covers materials that were published before January 5, 2009

Both of these seem just arbitrary. But they aren't, as it turns out. They both have to do with the defined jurisdiction of the US court.

1. Although you no longer have to register a work with the copyright office in order to have it covered by copyright, the court can only consider cases with items that have been registered. The general wisdom is that if you need to go to court about rights, you first file with the copyright office. (Since this settlement is about published books, most of them will have been filed.) The odd bit is that the court CAN consider non-US works because these would not in any case have been registered with the US copyright office.
2. The court only has jurisdiction over existing works -- it can't make any decisions about works that haven't been created yet. The key bit of information here is that legislation can affect the future, but the courts only deal with the past and present. Because this is a class action suit, it can't refer to future works.

Both of these make the results of the settlement even odder than I had imagined.

The next thing is what the outcome of the court review is likely to be. Essentially, the judge has two options: accept or reject the settlement. The judge could add some court oversight (I think I understood that), but the judge cannot make modifications to the settlement. The document we have in hand represents an agreement between two parties, and any changes need to be negotiated between those parties. Given that many lawyers spent many hours creating this settlement, there are effectively few opportunities for change.

This doesn't mean that there's nothing anyone can do. Various groups or individuals may contest the settlement on a variety of grounds (at least one of which is antitrust). However, if the judge takes those seriously, then the settlement would probably be rejected and we'll be... well, it isn't clear where we'll be at that point, except back where we were two or three years ago, with AAP suing Google for copyright infringement. What are the odds that Google and the AAP would be willing to go back and spend more millions negotiating for another few years?

I'll be at another meeting later this week that will be mainly about the legal issues. As I learn more, I'll pass it along. [Just in: Google's lawyer Alex MacGillivray answer some of these questions and more at the OCA blog.]

In case you haven't seen it, there is a database of works that has been created so that rights holders can claim works. It isn't clear to me if you have to do this in order to assert your rights, but if you are an author this is a way to make your contact information available to the registry. I don't know where they got the data for the database, but the whole thing is linked off of the settlement page. You can also add works of yours that aren't listed, such as chapters in books that you hold the rights to. It's worth a look.