For one, it sounds like Judge Chin is irritated with the parties. He noted that the case is six years old and threatened to set a “relatively tight schedule” for subsequent trial of the underlying copyright claims if the parties haven’t made significant progress by the next status conference on September 15. James is too nice to point out that much of the delay came from Judge Chin’s own lengthy gestation of his decision last March rejecting their previous settlement. Perhaps now that he’s an appellate judge (although still presiding over this case in district court), he has less patience for the slow incremental pace of federal litigation.
Second and more important, the parties indicated that they are indeed attempting to work out a new “opt-in” settlement that would comport with Judge Chin’s earlier ruling — just as James predicted when I interviewed him in the wake of that decision. It still isn’t at all clear what this might look like, and whether it would do anything much to address the collective action problems preventing Google’s dream of a comprehensive digital index of books (that Google controls). A class action settlement remains the wrong way to rewrite copyright law. But it might create a significant resource for users if an opt-in arrangement got widespread acceptance from publishers — on the scale of, say, the uptake of the iTunes store by record labels. Presumably the resulting search engine might not have good coverage of older or out-of-print works, but it would nonetheless result in considerable “googlization” of traditional books.