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(not following closely) I thought the difference between the prior attempts and this one is that: - the guild doesn't have authority to grant rights to orphan

by frig 17y ago

(not following closely) I thought the difference between the prior attempts and this one is that: - the guild doesn't have authority to grant rights to orphaned works - but in this case the plaintiffs did a class action against google (where the class == authors, essentially), and thus in the context of this agreement the guild does have the authority to grant those rights, b/c the class's legal representatives have granted the guild that authority in the interest of obtaining a settlement If that pocket summary is accurate it says a lot about the quality of Google's research, imho: it's quite a clever hack of the legal process.

fatdog789 17y ago
Class representatives do not have the right to bargain on behalf of members in materially different circumstances. Technically, orphaned book authors should not even be part of this class action because an orphaned-book author is not in the same position as an identifiable author. At best, the orphaned book authors could be part of a subclass, but they would require a separate settlement (or rather, sub-settlement). The problem is clear, as here, where the Guild negotiated money on behalf of orphaned authors...to be paid to the Guild. The Guild is not required to attempt to locate these orphan authors, or their successors/estates...it can just keep the money until the authors claim it. Even worse, the Guild is allowed to use this money for its own purpose, rather than setting it aside into a trust account for the orphan authors. In this case, others have challenged the settlement on two grounds: (1) antitrust, which is the most important issue, and (2) the orphaned authors were not fairly represented by the Guild, as evidenced by the lack of proper notice, the Guild negotiating to receive money for orphan authors, and the Guild granting itself the right to use that money for its own efforts. (Note: the challenge on (2) is both to the settlement AND to the class certification.) You're right, the pocket summary says a lot about the quality of Google's research. But it's not a clever hack of the legal process, because a law student could easily observe the antitrust issues arising here. It's an example of Google's lawyer's fucking up on an issue, and getting the Justice Department involved (and millions spent in responding to the JD's subpoena's and information requests) where the JD didn't need to get involved. If this had been an outside law firm, it would be considered malpractice.
- frig 17y ago
  Question: are you familiar with lane's gifts versus google (clickfraud class action settlement)? If not take a look; I think you'll be able to infer some strategic similarities (I'm happy to elaborate, but I'd rather not bias your judgment in advance).
  - fatdog789 17y ago
    There are no strategic similarities in the Lane's Gift case; in that case that i can see, so you should elaborate on what you mean. Google did what all class action defendants try to do: retain control over the payment of monies (in LG)...Here... they transferred that right to the Guild in exchange for the rights to orphan works. Google tried to make the class as broad as possible so that it would be binding on as many authors as possible, which all Ds do in every class action. It's important to note that all the LG members were already Google customers; here, most of the class members have no prior relationship with Google. It's also important to note that the transfer of rights contemplated by this settlement is not possible via a class action (at least, not on behalf of absent members); see the Ars Technica article for more on that.
    - frig 17y ago
      Warning: a little long+rambly. At microlevel I don't see anything unusual. At a more-macro level I do think Google (generally) treads a lot of legally-uncertain grounds, and thus often has something to gain from being targeted with (some types of) class action suits. This makes me wonder if they on occasion do a brer rabbit -- "oh please don't throw me in the briar patch" -- thing, and are secretly hoping to get to where they can offer a settlement in a class action context. Consider the Lane's case this way: - there were some potentially problematic aspects of Google's ad services (to what extent are only "human" ad clicks supposed to be billed-for? what recourse -- with Google, or via the legal system -- is available to those who suspect they've been a victim of so-called clickfraud?) - the service about which the uncertainty centers is Google's primary profit center (especially then; it's still the great bulk of revenues so far as I know -- does anything else contribute > 10% of revenues?) - post-Lane's most of that uncertainty is removed: it's pretty much impossible for their USA customers to bring any kind of case on any kind of broadly similar grounds Lane's was the first time I noticed this -- compared to more-standard class actions, Google actually derived net benefit from the suit and the settlement (in my opinion, of course). In the author's guild case there's something similar (and more arguably a case of malfeasance on behalf of the AWG and AAP, also -- but again I've not been following this case super-closely). Pretty much any scenario that lets Google keep doing what it's been doing with Google Book Search -- indexing, making a working book search engine -- is a win (as it makes that space unattractive for rivals); the present agreement seems likely to be modified but it'd have to be modified a lot before it becomes a net loss for Google's interests (again: in my opinion). Hence the brer rabbit speculation: on the scale google tends to operate (all the web, all the world's books, etc.) individually-negotiated anything are to be avoided; class-actions that're "lost" -- but only a little -- have some strategic advantages. This is to my knowledge the first major class action against Google since Lane's; given how well it looked like it might turn out for Google got me thinking about Lane's again.

by frig 17y ago

fatdog789 17y ago

Class representatives do not have the right to bargain on behalf of members in materially different circumstances. Technically, orphaned book authors should not even be part of this class action because an orphaned-book author is not in the same position as an identifiable author. At best, the orphaned book authors could be part of a subclass, but they would require a separate settlement (or rather, sub-settlement). The problem is clear, as here, where the Guild negotiated money on behalf of orphaned authors...to be paid to the Guild. The Guild is not required to attempt to locate these orphan authors, or their successors/estates...it can just keep the money until the authors claim it. Even worse, the Guild is allowed to use this money for its own purpose, rather than setting it aside into a trust account for the orphan authors. In this case, others have challenged the settlement on two grounds: (1) antitrust, which is the most important issue, and (2) the orphaned authors were not fairly represented by the Guild, as evidenced by the lack of proper notice, the Guild negotiating to receive money for orphan authors, and the Guild granting itself the right to use that money for its own efforts. (Note: the challenge on (2) is both to the settlement AND to the class certification.) You're right, the pocket summary says a lot about the quality of Google's research. But it's not a clever hack of the legal process, because a law student could easily observe the antitrust issues arising here. It's an example of Google's lawyer's fucking up on an issue, and getting the Justice Department involved (and millions spent in responding to the JD's subpoena's and information requests) where the JD didn't need to get involved. If this had been an outside law firm, it would be considered malpractice.

frig 17y ago
Question: are you familiar with lane's gifts versus google (clickfraud class action settlement)? If not take a look; I think you'll be able to infer some strategic similarities (I'm happy to elaborate, but I'd rather not bias your judgment in advance).
- fatdog789 17y ago
  There are no strategic similarities in the Lane's Gift case; in that case that i can see, so you should elaborate on what you mean. Google did what all class action defendants try to do: retain control over the payment of monies (in LG)...Here... they transferred that right to the Guild in exchange for the rights to orphan works. Google tried to make the class as broad as possible so that it would be binding on as many authors as possible, which all Ds do in every class action. It's important to note that all the LG members were already Google customers; here, most of the class members have no prior relationship with Google. It's also important to note that the transfer of rights contemplated by this settlement is not possible via a class action (at least, not on behalf of absent members); see the Ars Technica article for more on that.
  - frig 17y ago
    Warning: a little long+rambly. At microlevel I don't see anything unusual. At a more-macro level I do think Google (generally) treads a lot of legally-uncertain grounds, and thus often has something to gain from being targeted with (some types of) class action suits. This makes me wonder if they on occasion do a brer rabbit -- "oh please don't throw me in the briar patch" -- thing, and are secretly hoping to get to where they can offer a settlement in a class action context. Consider the Lane's case this way: - there were some potentially problematic aspects of Google's ad services (to what extent are only "human" ad clicks supposed to be billed-for? what recourse -- with Google, or via the legal system -- is available to those who suspect they've been a victim of so-called clickfraud?) - the service about which the uncertainty centers is Google's primary profit center (especially then; it's still the great bulk of revenues so far as I know -- does anything else contribute > 10% of revenues?) - post-Lane's most of that uncertainty is removed: it's pretty much impossible for their USA customers to bring any kind of case on any kind of broadly similar grounds Lane's was the first time I noticed this -- compared to more-standard class actions, Google actually derived net benefit from the suit and the settlement (in my opinion, of course). In the author's guild case there's something similar (and more arguably a case of malfeasance on behalf of the AWG and AAP, also -- but again I've not been following this case super-closely). Pretty much any scenario that lets Google keep doing what it's been doing with Google Book Search -- indexing, making a working book search engine -- is a win (as it makes that space unattractive for rivals); the present agreement seems likely to be modified but it'd have to be modified a lot before it becomes a net loss for Google's interests (again: in my opinion). Hence the brer rabbit speculation: on the scale google tends to operate (all the web, all the world's books, etc.) individually-negotiated anything are to be avoided; class-actions that're "lost" -- but only a little -- have some strategic advantages. This is to my knowledge the first major class action against Google since Lane's; given how well it looked like it might turn out for Google got me thinking about Lane's again.