Guide Through the Legal Jungle

Brief Analysis of Google Book Settlement Rejection

A New York federal court has rejected the class action settlement agreement negotiated between Google and members of the publishing industry. The settlement agreement with its attachments runs 300+ pages. I did a 10-page annotated summary of the proposed Google Book Settlement Agreement which you can find here. While my annotated summary prepared in mid-2009 does not incorporate the November 2009 amendments, it still provides a good overview of the settlement agreement’s complexity.

Perhaps the most significant language of the 48-page opinion is on page 46 when Judge Denny Chin writes “ . . . many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an opt-out settlement to an opt-in settlement.” Judge Chin discussed numerous objections to the settlement:

1. Notice to Members of Class Is Adequate. Judge Chin concluded that the class received adequate notice of the settlement. The settlement applies to anyone who has a copyright interest in a book that was published on or before January 5, 2009. I know many authors who were unaware of the settlement or unaware of its significant impact.

2. Class Representation Is Not Adequate in All Respects. The named plaintiffs in the class action are the Authors Guild, the Association of American Publishers, McGraw-Hill Companies, Simon & Schuster, John Wiley & Sons, and five individual authors. Judge Chin concluded that the interests of these named plaintiffs are not always consistent with the interests of all authors and publishers in the class who would be affected by the settlement.

3. Scope of the Settlement Is Too Broad. This lawsuit started as a result of Google digitizing books and posting snippets of those books in search results. In addition to allowing the continued posting of snippets, the settlement would in many cases authorize Google to sell and merchandise complete books without direct authorization from copyright owners. The settlement would also release Google from other potential author and publisher claims that were not the original focus of the lawsuit. Most troubling, the settlement gives Google a work-around for orphan works, a task more appropriately left to Congress which has considered orphan works legislation in the recent past.

4. The Settlement Is Inconsistent with Copyright Law. It is the copyright owner’s exclusive right to determine who may use his work. A copyright owner’s silence or inaction can not be deemed to be consent or permission to use the copyright owner’s work. Yet, this would be the result of an opt-out versus opt-in Google settlement agreement.

5. The Settlement Raises Antitrust Concerns. The settlement would give Google a de facto monopoly over orphan works and other unclaimed works. While Google would have millions of scanned books in its database which Google could use for commercial purposes, Google would not be generous about sharing that database with other commercial users.

6. The Settlement Raises Privacy Concerns While Google would be able to collect significant data about what and when people read, Judge Chin did not see privacy issues as “a basis in themselves to reject the proposed Settlement”.

7. The Settlement Raises International Law Concerns The class includes non-US works that were registered with the U.S. Copyright Office or that were published in Canada, the United Kingdom, or Australia, on or before January 5, 2009. Subjecting foreign authors and publishers to the terms of the Settlement may violate provisions of the Berne Convention and other international copyright treaties.

In conclusion, Judge Chin found that the settlement was not fair, adequate, and reasonable. You can read the entire opinion here.

Sounding Off Online . . . and Staying Out of Trouble

Telling it like it is online can generate accusations of defamation, cyber bullying, trademark infringement, and other legal claims with long names. Here are some of the tips I share in The Cyber Citizen’s Guide Through the Legal Jungle to help you side-step the potential negative consequences of speaking your mind online:

 

1. Be Yourself. While you can post your online remarks anonymously, you should not pretend to be someone else. Online impersonation can be a crime.

2. Stick to the Facts. Your risks of a defamation claim increase if you stray from verifiable facts when you discuss real people and real events. Changing the names is not always enough.
   
   
3. Solicit Comments. If you offer news or public affairs information through a blog or online forum, offer the real people and companies mentioned an opportunity to confirm or deny any allegations. Exercising such journalistic objectivity may help you qualify for protection under laws such as the reporter privilege and shield laws.
   
   
4. Respect the Limitations on Using Other’s Trademarks. It is generally legal to use specific company names and product brand names in your online commentary. However, you cannot use those names in a way that makes people mistakenly think you are affiliated with or sponsored by the targeted company.
   
   
5. Consider the Impact on Your Job. Your employer may legitimately fire you for your online postings if you disclose any of your employer’s confidential information, make defamatory comments about your employer, threaten people in the work place, or otherwise violate your employer’s social networking policies.
   
   
6. Disclose Any Quid Pro Quo. If you post reviews for which you receive free sample products or other compensation, federal guidelines indicate that you should disclose that fact. Federal guidelines also include the expectation that you provide truthful and substantiated descriptions of the products you review.

 

 

Seinfeld Case Emphasizes that Opinions Are Not Defamatory

I have previously blogged about the copyright infringement and defamation lawsuit against Jessica and Jerry Seinfeld filed by Missy Chase Lapine here and here.

From the start, I believed Lapine’s defamation claim against Jerry Seinfeld was stronger than her copyright infringement claim against Jessica Seinfeld’s cookbook. However, in the end, the court dismissed both the copyright and defamation claims. The defamation dismissal just took a little longer.

Basis of Seinfeld Defamation Claim

The defamation claim arose from comments Jerry Seinfeld made during an October 2007 appearance on the Late Show with David Letterman.

In the complaint she filed to initiate the defamation lawsuit, Lapine originally accused Seinfeld of characterizing her as a stalker, assassin, and mentally ill person. Interestingly, Lapine changed her defamation argument during the course of the lawsuit. Perhaps because the court said the transcripts and recordings from the David Letterman Show clearly demonstrate that Seinfeld did not make the statements that the complaint attributed to him.

In the court papers Lapine later filed to oppose Seinfeld’s dismissal motion, Lapine based her defamation argument on the fact Seinfeld said "that Lapine had fabricated opportunistic allegations of plagiarism against his wife." The problem for Lapine with this second argument is that Seinfeld's statement qualifies as an opinion.

Opinions Are Not Defamatory

A statement of opinion is constitutionally protected and can not be defamatory. However, merely labeling a statement as opinion does not automatically insulate the statement from being defamatory. For your statement to qualify as an opinion, your audience must realize that your statement is not meant literally.

In Seinfeld’s case, the court said it was inconceivable that a reasonable person would believe that Seinfeld's statements were conveying facts about Lapine. Seinfeld, a well-known comedian, made the statements in question primarily on the Letterman show, a late-night entertainment program, during a comedic interchange between Seinfeld and Letterman. His comments were statements of his opinion about the lack of merit of Lapine’s lawsuit and were, therefore, not actionable.