After a nearly eight-month delay, lawyers for Google and the Authors Guild were back in court this morning. In oral arguments scheduled before a panel of the Second Circuit Court of Appeals, Google was set to argue that Judge Denny Chin’s 2012 order granting the Authors Guild’s motion for class certification should be reversed. The long-running case over Google’s library book scanning has been stayed since September, 2012, pending the Second Circuit’s review of Chin’s decision.
Google had initially argued that the Authors Guild case should not be certified as a class action largely because “individual issues predominate over common ones as to copyright ownership and fair use.” In his May 31, 2012 ruling, however, Chin rejected that argument.
“Class action is the superior method for resolving this litigation,” Chin ruled, concluding that, “every potential class member’s claim arises out of Google’s uniform, widespread practice of copying entire books without permission of the copyright holder and displaying snippets of those books for search.” Whether Google’s wholesale scanning constitutes copyright infringement, he noted, can be assessed “without making individualized considerations.” Because Google “treated the copyright holders as a group,” Chin found, “copyright holders should be able to litigate on a group basis.”
If the Second Circuit does end up reversing Chin’s decision, the case would not necessarily be over for the Authors Guild. As Authors Guild executive director Paul Aiken told PW last year, the case could still proceed on the basis of the three-named plaintiffs. And, the AG could of course appeal a potential loss at the Second Circuit to the Supreme Court. If the Second Circuit affirms Chin's decision, look for Chin to push a quick trial schedule, as the judge has expressed his desire to conclude the case, which is now over 7 years old.
A reversal, however, would be a serious blow to the AG's case, and would certainly serve as a catalyst to settle. Since the stay, Federal judge Harold Baer has ruled in the Authors Guild vs. HathiTrust that Google's scan program was a clear fair use under the copyright law, which holds major ramifications for the Authors Guild’s case against Google. “The fair use ruling is substantially applicable to Google," noted New York Law School's James Grimmelmann, after the HathiTrust decision. "Yes, Google is commercial, but the transformative use and market harm points [in Baer's decision] stand, and that's enough for a solid fair use victory." The Authors Guild, meanwhile, has also appealed Baer's ruling in the HathiTrust case, also to the Second Circuit.
A reversal by the Second Circuit on the class action question could, perhaps most importantly, affect the case's financing for the Authors Guild. "The only prospect to recover the lawsuit’s costs would be to hope for a decisive victory followed by fee-shifting," Grimmelmann added, "while at the same time the plaintiffs would be exposed to the prospect of having to pay Google's (by now quite significant) legal fees if they lost.”