A week after judge Denny Chin gave the parties in the Google Books litigation until September 15th to come back with a revised settlement, an objector brief is asking the court to reject the class-action status of the suit, based on the Supreme Court’s recent ruling in Wal-Mart Stores, Inc. v. Dukes et al.
In the Wal-Mart case, the court ruled that the class (women) was too broad to support 1.5 million underlying, individual fact-based claims of employment discrimination. In their brief filed with the court this week, attorneys Robert Kunstadt and Illaria Maggione, assert that the multitude of fact-based assessments necessary to determine fair use in the Google case is similarly too broad.
“In view of Wal-Mart, it would be inappropriate for the Court to rule upon fair use fact-issues in a class-action setting,” Kusntadt and Maggione argue. “Assessment of fair use varies depending on whether a literary work is fiction or factual; the length of the particular work compared to the length of the challenged use; and the economic impact of the challenged use upon the market for that particular work. Those fact issues may not be determined in the abstract, ignoring the variations across disparate works by a multitude of class authors.”
Kunstadt and Maggione’s brief notes that the Google class action was never “certified as a class action for substantive purposes,” only for settlement purposes. Thus, if the parties return to litigation, the objectors suggest, Wal-Mart precludes Chin from deciding the case based on whether Google’s display of snippets is fair use, as the judge suggested he might do at last week's status conference.
Wal-mart would likely have no bearing on the kind of narrow “opt-in” settlement now reportedly under discussion, depending on the details of a revised deal, and New York Law School's James Grimmelmann told PW he doesn't think Kunstadt and Maggione's heads up to judge Chin will have an impact on any litigation, either. “It isn’t as if Chin isn’t aware of Wal-Mart,” he noted. If the parties do return to litigation in the coming weeks, class issues are going to come up, he added, but not because Wal-Mart has now made “fair use” too broad for class action status. “If that was the case,” Grimmelmann explained “it means there could never be any copyright class action suits.”