Friday, August 28, 2009

Google Settlement: Opt In or Opt Out?

Dear Rich: I received a notice regarding a proposed settlement to a class action lawsuit initiated by the Authors Guild against Google. The notice says that I need to opt *out* if I want to preserve my right to sue Google. I'm confused. I thought that copyright owners have the exclusive right to license their own works. I am not a member of the Authors Guild, so I have not given them the right to initiate infringement lawsuits on my behalf. Shouldn't the notice be asking me to opt *in*? The short answer, unfortunately, is that if you received the notice, you must opt out, not in, to the Google Settlement. Welcome to the world of class actions -- in which strangers who share a common injury or claim can sue on behalf of people like you (considered to be "similarly situated individuals.")
While You Were Sleeping
Sometime -- perhaps while you were sleeping -- you unknowingly joined the class. The original Authors Guild lawsuit against Google was brought on behalf of all persons who owned copyright in a book that was in the University of Michigan library. That class certification may not have affected you --  you would have to check the UM card catalogue. But when Google negotiated the proposed settlement in October 2008, the parties managed to "grow" the class to include anybody with "a U.S. copyright interest in one or more books." That's one of the reasons the Google settlement has become so controversial -- it is, as one writer put it, "a compulsory license to all books in copyright throughout the world forever." 
If You Opt Out ...
Members of a class are given the choice to "opt out" of the proceedings and pursue claims on their own. In other words, you are free to notify the court that you would like to take on Google all by yourself in a separate lawsuit. You may be thinking, what if I don't want to be in the class, and I don't want to take on Google? In other words, 'Why can't everybody just leave me alone?' Unfortunately that option is not available. However, many others are challenging the settlement, and the validity of the class
Why We Liked the 'Class Action' Movie
We love that this movie was actually filmed in San Francisco and shows City Hall before the renovation (and we love the document delivery scene on Bush Street -- or we think it was Bush). But most of all we love that the crew renovated the Beach Chalet (before it was officially renovated) and shot the bar scenes-- including one with a musical performance by Dan Hicks -- in the beautiful muraled lobby across from the Pacfic.  
PS. For those of you who were stirred up by our recent response to the question, 'Does Every Product Have a Trademark?' we'll try to provide further clarification next week.