2nd Circuit rejects class certification in the Google Books saga (and evokes fair use defence for G)

This Kat has always been a fan of endless stories.

This is why she was so pleased to learn that, after Before Sunrise, Before Sunset and Before Midnight [which she all equally loved], there might be a (slight) chance to have another Before movie (in ten years or so).

Transferring this passion of hers to the equally entertaining world of copyright, there is another saga that this Kat has keenly followed for years, this being the Google Books Library Project & related litigation.

In late 2012, this blog reported news that the Association of American Publishers (AAP) and Google had concluded a settlement agreement to put an end to copyright infringement proceedings first brought against Google in 2005 by five AAP member publishers (McGraw-Hill, Pearson Education, Penguin Group USA, John Wiley & Sons, and Simon & Schuster).

Of course, this did not affect the ongoing litigation between the Authors Guild and Google. 

Judge Denny Chin

As reported by the IPKat, last November Google submitted a brief to the US Second Circuit Court of Appeals, in which it basically asked the Court to reject Judge Denny Chin's ruling in May 2012 that let the Authors Guild sue Google on behalf of all authors whose books were scanned without permission. At that time Judge Chin had certified a class consisting of:

"All persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors ..."

While certifying a class is in principle a green light for a class action to go to trial, last August the US Second Circuit Court of Appeals granted Google permission to appeal the certification.

Wrong certification,
says the 2nd Circuit

In its submission, Google argued that Judge Chin had erred in certifying the plaintiffs' proposed class, noting that there might be a divergence between the interests of individual authors and their representative associations. In particular many members of the class - perhaps even a majority - were said to benefit from Google Library Project and, as a result, would disagree with plaintiffs' efforts.

Today the Second Circuit delivered its decision, in which it substantially agreed with Google's submission. 

The argument of a divergence of interests between authors and their representative associations was not addressed at particular length, although the Court acknowledged that it "may carry some force". 

What ultimately led to rejection of Judge Chin’s class certification was consideration of Google’s longstanding argument that its Library Project enjoyed a fair use defence.

Which serves authors' interests best,
Google or authors' associations ?

The Second Circuit classed Judge Chin's class certification as "premature in the absence of a determination by the District Court [ie Judge Chin] of the merits of Google's 'fair use' defense". Hence, the Second Circuit decided to remand the cause to the District Court for consideration of the fair use issues. 

According to Prof James Grimmelmann,

“the judges on this appeal were convinced that Google has a winning fair use defense across the board. It’s not a fact-dependent defense, one that would work for some of the books owned by class member but not for others. Rather, it’s a general defense, one that would render class certification itself irrelevant, even 'moot the litigation'.”  

Since fair use issues were outside the scope of the appeal,

"the court decided to gently signal what it thought about the fair use question and invite Judge Chin to cut to the chase. It’s not the most juridically correct resolution of the appeal, but it seems justifiable on pragmatic grounds."

This Kat agrees with this analysis, but what do our readers think? 

Besides fair use considerations, in the background there also remains the classic Google Books/Hamlet dilemma: Which serves best the interest of authors, Google or authors' associations?