In yet another twist in the Authors Guild vs. Google, the Second Circuit Court of Appeals yesterday agreed to hear Google’s appeal of Judge Denny Chin’s May 31 decision granting the case class action status. As of today, the appeal has no bearing on the current schedule, although Judge Chin could issue a stay at any point, suspending proceedings. As of press time, however, the parties have not asked for a delay and Chin has not filed a new scheduling order, meaning opposition briefs, due August 24, are still expected to be filed at this time.

“I don’t expect this to change the timetable for the case in the District Court, given how long the case has been kicking around and Judge Chin's eagerness to move it forward,” NYLS’s James Grimmelmann told PW. “The appeal will proceed in parallel. And unless the Second Circuit decides to accelerate the process, it will proceed at the usual stately pace for appeals, with a full briefing followed by oral argument.” Since the issue on appeal has no direct connection to the merits of the case (the case is a fair use case whether it proceeds as a class action, or on the claims of the three named plaintiffs) Chin could certainly decide to keep the current schedule, and have the case fully briefed while awaiting a decision on standing from the Second Circuit. Chin, a member of the Second Circuit sitting by designation at the district court, recused himself from the appeal.

Complicating any decision to stay the current proceedings is a parallel case, The Authors Guild vs. HathiTrust. In that case, before judge Harold Baer, the AG is suing Google's libraries partners, but the core issue, primarily whether mass digitization is fair use, is nearly identical. The HathiTrust case is now fully briefed and scheduled for a November trial. If a decision came first in that case that addressed the fair use question, legal observers say it could certainly influence the outcome in the Google case.

If the Second Circuit does reverse Chin’s decision to grant the Google case class action status, the case would not be over. As Authors Guild executive director told PW before Chin's decision to grant associational status, the case would still proceed on the basis of the three-named plaintiffs. If the Second Circuit reverses, however, it would certainly impact the litigation. “I would wonder about the case’s financing,” Grimmelmann observed, “as the only prospect to recover the lawsuit’s costs would be to hope for a decisive victory followed by fee-shifting, 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.”

On May 31, Chin granted the Authors Guild’s motion for class certification, rejecting Google’s argument that the complex copyright questions at the heart of the case, for thousands, potentially millions, of authors require individual assessments. "Class action is the superior method for resolving this litigation," Chin ruled, concluding that potential fair use defenses notwithstanding, "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 this wholesale scanning practice constitutes copyright infringement, he noted, can be assessed "without making individualized considerations."