The Google Books Search Settlement came to court last week for a Fairness Hearing. There is now a full transcript, but like many who follow the case closely, but not too closely (it could easily become an obsession), I have mainly relied on Twitter comments and the excellent blog of Professor James Grimmelmann, The Laboratorium, as a way of keeping in touch with what is going on. Grimmelmann and his students have also produced a fascinating, colourful and impressionistic report of the presentations and the behaviour of the actors on the day. This is highly recommended if you have an interest in how the case is developing. The whole process leaves me in considerable admiration for the American legal system — astonishment even; though one knows that it is very possible that a perverse decision may be formulated in the end. And then dragged out and mangled with a decade-long process of delay and appeal all the way to the supreme court.

Admiration, that the process involves a Fairness Hearing — a hearing where all parties are invited to present arguments for and against the ‘fairness’ of the proposed settlement. Fairness really is at issue and fairness should speak. Admiration for the remarkable skill and ingenuity of the critics and the proponents of the settlement. Admiration, really, that the Judge is clearly looking for a solution. At several points in the process he asks for help — he especially wanted suggestions from the critics as to how the Settlement could be fixed. Grimmelmann notes in his commentary that critics who could not come up with ideas as to how to fix the problems they were focussing on, lost ground.

The Judge (Denny Chin) was not asking for outside help, but like Solomon he clearly needs it. Perhaps his case would work in a Biblical framework? The dispute has unnerving parallels with the one brought to Solomon, but there are also many additional complications: Rule 23 and the arcane process of American class actions, identical factual predicates, Firefighters and all (no, I don’t know what Firefighters is about, but a lot hangs from its precedent). The crucial point is that this is once again a dispute about a child who should have a long and healthy future and there is a danger that it may be smothered or torn apart in his chambers. The orphan books should thrive! But there are too many jealous ‘foster parents’ and the judge will need a masterly stroke if he is to separate the shameful pretenders from the true mother. Is there scope for the judge to put the settlors to a Solomonic test? Two moments in the argument struck me as particularly crucial in this regard:

First: BONI (for the Authors’ Guild) on orphans in dialogue with the Judge:
THE COURT: I think I agree with Mr. Katz and the government that if you give an opt-in, you would eliminate a lot of the objections.
MR. BONI: We would eliminate a lot of objections but we wouldn’t have a settlement, and here’s why. Number one, and most importantly for us, we will not — we as class representatives –THE COURT: Well, I would assume — before I said I would surmise. But I would surmise that Google wants the orphan books and that’s what this is about — (Transcript p138)

Second: DURIE (for Google) in dialogue with the Judge:
THE COURT: If Google had been digitizing entire books and not just making portions available but making the entire portions available and indeed selling them, would that be
something that Google would have tried to defend?
MS. DURIE: Selling the work, no. Making the entire work available, that is a more complicated question, in the following respect. We were giving an entire copy of the book to the library…..(Transcript p150)

Boni says that there wouldn’t be a settlement if it had to be opt-in (presumably because Google would not work on that basis. But are we sure about that? They are working on an opt-in basis from now on). Durie, speaking for Google, concedes and volunteers that Google have been quite willing to give away entire copies of books in copyright (books that it did in no sense own). Google is not ungenerous. I think these positions conceal an axis on which Judge Chin may be able to turn the case with a judgment worthy of Solomon. Notice his comment to Boni: ‘make it opt-in and you would eliminate a lot of the objections’. There are bluffs to be called. The parties should be forced to live with a purely opt-in solution, which incidentally keeps copyright the right way up, will keep Ursula le Guin, and the French and German governments happy; or (and at this point Judge Chin needs to stroke the handle of his sword, even test the mettle of the blade with his forefinger) Google must be much more generous with the copyrights it has opted from the orphans. Generous to the public domain and non-exclusive to its competitors.

With a crafty swipe of his rapier, Judge Chin should be able to pierce the settling parties apart on this issue. And put the whole thing back together in a more pleasing fashion. I am not sure whether or not copyright will still be the right way up. But we may hope!