April 20, 2018

As Google Settlement Now Seeks Court Approval, Rejected Tasini Settlement Shoots for Supreme Court Review

With all briefs now filed, the U.S. Supreme Court will consider whether to hear an appeal to overturn a 2007 Second Circuit Court of Appeals decision in the epic Tasini v. New York Times case, which by a two to one margin rejected a 2005 agreement hammered out by lawyers for publishers and three writers’ groups (the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors). The court in its November 29 conference will consider whether to hear the appeal.

The Second Circuit’s rejection of the settlement shocked all parties, ruling that copyright law did not give them jurisdiction to approve a settlement that included damages for writers who did not register their copyrights. There was one major problem with the ruling: no one made the argument the court eventually ruled on, and none of the parties—not publishers, writers, nor even the objectors who appealed the settlement—agreed with the court’s ruling. The objectors’ response can be found here.

For those expecting a smooth approval process for the Google class action settlement, the Tasini case serves as a stark reminder of how difficult settling such cases can be. If the Supreme Court rejects the latest appeal in the Tasini case, a new settlement must be crafted for the Tasini case, already now more than a decade old, and that process would almost certainly lead to new lawsuits, and more delay.