From the questions he asked from the bench, it certainly seems like Judge Denny Chin wants to see the Authors Guild lawsuit against Google and its library book-scanning program proceed as a class action. But after a morning of oral arguments in Manhattan on Thursday, it is unclear if that will happen.
In court to argue three motions, including Google’s motion to dismiss the Authors Guild as an associational Plaintiff, and the Authors Guild’s motion for class certification, lawyers for both sides offered a tantalizing preview of the arguments that would be made at trial, including a preview of Google’s fair use defense. But after roughly an hour of argument, Chin declined to rule from the bench, leaving the case’s path forward in question.
The morning began with Google Attorney Daralyn Durie defending Google’s brief against class certification. Her opening argument settled around a Supreme Court ruling in a case, Hunt v. Washington State Apple Advertising Commission, which holds that an association qualifies for standing if it satisfies three “prongs," the third prong holding that “neither the claim asserted nor the relief requested” requires the participation of individual members. Durie told Chin that prong was not satisfied in this case because determining the complex copyright questions at the heart of the case, for potentially millions of authors, required individual assessments.
Chin jumped right in, pressing Durie as to why the copyright questions, including questions of ownership, couldn’t be addressed at the relief stage, should the case get that far. Could participants come in and “prove up,” questions of ownership then, Chin asked? No, Durie replied, noting that the copyright questions were too complex to determine in blanket fashion. Chin, however, persisted, at one point suggesting that Google would be “delighted” if he certified a class, because it would save Google the trouble of answering a flurry of individual suits. “No,” Durie responded. “We care whether the law is being applied correctly, and the correct application is not to certify a class.”
Arguing for the Authors Guild, attorney Joanne Zack began by attacking Google for not previously objecting to the Authors Guild’s standing over the last six years of negotiation and litigation. That argument seemed to carry little weight, however—the case became a class action for the purpose of a settlement, and there was no evidence or suggestion that Google had ever waived any of its potential defenses during that period.
Zack asserted that the “commonalities” of the class, despite the individualized nature of copyright law, was more than sufficient to merit approval of the class. There are no unique circumstances, or disagreements among the class, she noted, and the case only seeks the minimum statutory relief, so no one is seeking special treatment. All authors are affected by Google’s digitization, “distribution to libraries” and public display of their books without authorization, she argued because virtually all authors, even those who signed away their copyrights, retain at least a royalty interest in them. And a preponderance of copyright registration records provides a feasible baseline for determining the contours of the class.
Zack also called the well-funded Google an “intimidating defendant,” and said it would be burdensome and unfair for individual authors to pursue their own claims. She pointed out that while Google is asking for individual scrutiny of copyrights now, the company did not apply any individual scrutiny of copyrights in its own actions, scanning entire collections of books. If Google could apply its program without regard to individual circumstances, it should be possible, Zack argued, to answer common questions of law via a common action, rather than force such questions to be answered in costly, time-consuming individual suits. “This action calls for mass litigation to adjudicate the mass digitization.”
Zack also took aim at Google’s fair use defense. While Google claims the case comes down to its display of snippets, this is a case about copying, Zack asserted, arguing that Google’s scanning put the potential value of the entire book market at risk, both from possible piracy, as well as from the "pre-emptive closing" of a potential secondary license market, citing expert reports included as part of their brief from Harvard University’s Ben Edelman, and Vandanderbilt’s Daniel Gervais.
Durie, previewing Google’s possible fair use defense, argued, among other things, that Google’s program is legal, transformative, and beneficial to authors. When it comes to fair use, the court is limited to deciding market harm on actual or probable markets, she told Chin, noting there is no existing or potential market for authors in snippets. But even if the court was to accept there was a question of potential blanket harm to authors as suggested by the Authors Guild’s expert reports, the fourth factor of fair use analysis requires harm to be balanced with benefit, and the benefit to authors from the Google program cannot be determined without looking at individual circumstances, because contracts differ, and different books return value to different authors in different fashion. Could those issues be determined by breaking books into categories, Chin asked at one point? No, Durie replied, perhaps if there was only "eight or nine categories,” but, she suggested, there are in fact many different scenarios in play.
Durie also cited the $100,000 survey of authors commissioned by Google for its brief (and contested by the Authors Guild) which showed that 45% of 880 author respondents think Google Books is beneficial, and only 19% think it harms them. When Chin asked if she would suggest he should rule on the basis of a survey, Durie explained that the survey merely illustrates a key point: that a significant portion of the broad class the Authors Guild seeks to represent finds the Google program offers economic benefit.
Chin, however, largely avoided discussing the controversial expert reports and the survey, briskly acknowledging that “Google has survey evidence, and the Authors Guild relied on experts,” before moving the arguments on. Durie persisted, however, and landed a glancing blow at the bell that questioned the Authors Guild's claims that its members are harmed: the Authors Guild could easily survey its own members, using its membership rolls, she said. That they have not, she suggested, is “very telling.”
Durie also took issue with the Authors Guild characterization that Google "distributed copies" to libraries. On one hand, Durie argued that the law in question applies to the transfer of "material copies." Further, she said Google remains in control of the original scans, and only provided access some participating libraries; if some libraries made their own copies, that is not Google's primary responsibility, she suggested. Indeed, in a parallel case, the Authors Guild is also suing a cooperative of university libraries over its digitization initiative.
There was no timetable from Chin as to when he would rule, but a ruling will most likely come quickly, as the case is on an aggressive schedule after years spent in pursuit of a now rejected settlement. And while the Authors Guild made a compelling case for common questions of law to be addressed by a common class at oral arguments, it did not address why the Authors Guild is the proper organization to represent that class,or the deeper questions of adequate representation that arose during the settlement process.
Chin also heard from for the American Society of Media Photographers on a challenge to its associational standing in its separate class action suit against Google, but ASMP attorney Jack Maguire spoke only briefly and rested on the arguments in the ASMP briefs.
Noticeably absent from the oral arguments, meanwhile, were publishers, who are still said to be working on a separate settlement with Google after being severed following the settlement rejection. A Google spokesman said those discussions were still ongoing.
After more than six years, the Authors Guild case against Google could now go to trial as early as September. Even if Judge Chin finds for Google and denies the Authors Guild associational standing, Authors Guild officials have said the case against Google will go on, with the remaining three named plaintiffs: Betty Miles, Joseph Goulden, and Jim Bouton. Earlier this year, three of the six original representative plaintiffs – Herbert Mitgang, Daniel Hoffman, and Paul Dickson – bowed out of the case.
Motions for Summary Judgment are due to be filed by June 14, with all replies set to be by August 13.