As expected, Google yesterday filed a motion to dismiss the Authors Guild as an associational plaintiff from the long-running book-scanning case, and also moved to sever the American Society of Media Photographers from its related suit against Google. If granted, only the individual plaintiffs in the two lawsuits would go forward with litigation against Google. The Authors Guild and visual artists now have until January 23 to file their responses, to which Google with then respond shortly thereafter, likely in early February. In the meantime, Judge Chin will have overlapping motions, as Google is scheduled to file its response to the Authors Guild recent motion for class certification motion by January 26.
In its supporting brief, Google argues that the associations lack standing to bring suit. “Plaintiffs in both cases fail to plead facts showing that the associations have standing to bring these copyright claims,” the brief posits. “For that reason, the claims of the associations must be dismissed.”
On his blog, the Laboratorium, New York Law School’s James Grimmelman explained the legal underpinnings of Google’s motion. “Ordinarily, only the person who has allegedly been injured by the defendant’s actions has standing to sue,” he notes. “In a copyright case, standing comes from ownership. Only the ‘legal or beneficial owner’ of the exclusive right the defendant has allegedly infringed has standing to sue. Since the Authors Guild doesn’t own the copyrights in its members’ books, it can’t sue in its own behalf.”
However, there is an exception, Grimmelmann notes, but it is narrow, and that is what Google’s supporting brief addresses. “Membership organizations can assert associational standing if their members would have standing to sue,” Grimmelmann explains. “Google’s argument, in a nutshell, is that the legal issues this case will confront will require too much individualized proof for associational standing to work.” In other words, determining the facts of the case, such as whether the individual plaintiffs “own the relevant rights,” and whether Google has a potential fair use defense for each work scanned. “Both of these inquiries, Google alleges, are so fact-dependent that they will require the participation of individual members in the lawsuit,” Grimmelmann writes, “thereby making associational standing impermissible.”
While a settlement of the publishers’ claim against Google is said to be close, Google’s motion to dismiss could serve to rachet up the pressure on the Authors Guild, following the final rejection of the settlement in March. “This is a tactical move,” Grimmelmann told PW. “It costs the plaintiffs to respond, and Google has deeper pockets. More importantly, if Google wins here, it gives the plaintiffs less flexibility in how they conduct the lawsuit, and winnows the kinds of arguments they can present.”
Meanwhile, Google’s forthcoming motion to oppose class certification bears watching, as it will likely offer a far more detailed argument in defense of the company’s scanning, and Chin may even decide both motions in a single ruling. “The timing is interleaved and so are some of the factual and legal issues," Grimmelmann observes, “so I wouldn’t be surprised by a single opinion addressing both sets of motions.”