Justice Department Eyeballs Google Settlement

In the fast-paced world that is the Google Book Settlement, the Justice Department has decided to review the proposed settlement to determine whether it violates any anti-trust laws. We'll update this post to explain what this means shortly.

Google Book Settlement Stalls

Today, Judge Denny Chin extended the deadline to opt-out of the Google Book Settlement. First, a little history. Several years ago, Google embarked upon an ambitious project to scan every book ever created. Working with several institutional libraries, Google has, thus far, scanned approximately 7 million volumes.

In 2005, the Authors Guild and others commenced a class action against Google alleging that the scanning project infringed upon the individual authors copyright rights. We won't get into the basis for the lawsuit here. In 2008, the parties reached a complicated settlement that addresses Google's prior actions in scanning the 7 million volumes and also grants Google significant rights to continued use of its digital library going forward.

The forward looking aspects of the settlement are unusual. Class action are typically resolved by providing some measure of compensation for prior acts and an agreement that the behavior that led to the class action is not repeated. This settlement is different. The settlement agreement runs 334 pages long (no, that's not a typo) and includes more in attachments (200 pages) than primary text (134 pages). A vast array of rights are implicated in the settlement agreement and a new entity -- the Registry -- is created to administer those rights on behalf of authors.

We represent at least two class members of the Google Book Settlement who received their notice within the last two weeks. We suspect that other clients of ours may be class members, but they have yet to receive any notice. We are pleased that the deadline is extended and thank Gail Steinbeck and Andrew DeVore for their efforts. If you have received a class notice or suspect that you may be a member of the class, we'd be happy to help you understand your rights. We're also interested to know if you have only recently received your notice.

The 13th Juror aka Twitter, Google, or Blackberry

Today we digress slightly to discuss an article that appeared in the New York Times a couple of days ago. The legal system has gone to great lengths to establish an orderly trial process that tightly controls the information presented to juries. Now, litigants are finding that jurors are conducting their own shadow trials -- engaged in independent research through Google or Wikipedia, or discussing deliberations with friends through Twitter. The phenomenon, as reported by the Times, has led to mistrials in significant cases. Ironically, the court system in New York has installed WiFi in various Courts as a service to serving jurors. No good deed...?

We used to lock up jurors in New York. Okay, not lock up exactly. Juries in felony trials -- serious criminal cases -- were sequestered, meaning that the jury stayed in a hotel until the trial ended. Jurors were sequestered to prevent them reading news reports about cases or discussing the case with family and friends. Easy enough, before the Internet that is. If we still sequestered juries, all laptops, Blackberrys and other devices with the ability to connect wirelessly to the Internet would be confiscated.

Maybe we should lock offending jurors up again, only for real this time. Or maybe there should be fines for engaging in independent research. Seem too harsh? Litigants who spend tens of thousands of dollars on trials might not think so.

What should trial lawyers do? What can they do? Monitor Twitter, among other sites, for evidence that jurors are discussing the case? Is there any mechanism to discover whether jurists are using other resources, like Wikipedia or Google?