If ever there is need for a mulligan in litigation, the time is now.
The parties in the Google class action litigation have announced their intent to re-work their proposed settlement. Yet, it should be pointed out that any potential re-write may suffer from the same flaws as the present settlement arrangement. The DOJ observed last Friday that the plaintiff's class is seriously under-represented. There is no one in the plaintiff's class specifically aligned with present and future orphan work owners, with foreign rights owners or with future authors, heirs and distributors. Also, importantly, the class does not represent the interest of the U.S. government, which certainly has a role to play given its regulation in the copyright arena since 1790.
It is well that the class parties seek a re-do with the assistance of the DOJ. But there are a lot of other interest holders at stake, and the present class parties coupled with the DOJ cannot be expected to represent all competing and objecting interests. This anticipated pause in the litigation provides a good opportunity to address the lack of adequate class representation for all of the new, post-complaint issues that have been placed in the first proposed settlement and that will likely be the subject of negotiation for the re-write. Indeed, the court should insist that the parties brief the issue of adequate class representation now.
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