Class Action Certified For Google’s “Sweeping and Undiscriminating” Copying

Seven years into Authors Guild v. Google, Judge Denny Chin of the Second Circuit Court of Appeals certified a class action against Google on May 31. The lawsuit began in 2005 soon after Google’s 2004 launch of its book scanning project. Twelve million books have been scanned and made available in snippets in response to Google Books searches. In almost all cases, the copying and online display of text and images from the scanned works is without benefit of permission from copyright owners.

Proposed settlements were negotiated, opposed, negotiated again and opposed again over several years. Photography groups sued in 2010, and last week’s ruling was in the combined litigation during which Judge Chin was elevated from federal district court to the court of appeals. Some of the forceful language in the order might mean that the court is ready to get to a merits ruling.

These class actions are copyright infringement litigation, but that gets brief mention. Google’s massive copying is an undisputed fact.  The entitlement to copyright protection for a huge number of the scanned works is an undisputed fact. If and when they are reached, the merits issues will mainly be Google’s defenses that its copying is fair use of the scanned works because of their lack of original content and that the copying has a benign effect on the potential market for the works. 17 U.S.C. §107 (2) & (4).

Google’s theme was that each author has to file his or her own lawsuit. On the way to giving the class action a green light, Judge Chin carefully proceeds through the class action requirements on standing and the technical prerequisites of numerosity, commonality, typicality, and the adequacy of the plaintiffs to be class representatives.

But some words stand out which Google likely did not find comforting. The idea that each author had to separately vindicate rights, remember twelve million books scanned, was blasted:

…given the sweeping and undiscriminating nature of Google’s unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually. When Google copied works, it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting “snippets” of a particular work would constitute “fair use.” It copied and made search results available en masse. Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually and assert rights in a separate action. Because Google treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis.

While the decision is confined to certifying a class action, parts of the decision touch on the strength of Google’s fair use defenses. The court pays unwelcome attention to Google’s argument that the snippets it displays online actually stimulate sales of books. Aside from there being no evidence supporting the argument, Judge Chin is pointedly unreceptive in a footnote at the end of the decision: “while these authors may have authorized a publisher to promote their works, they have not authorized Google to do so.”

Where does this lawsuit over the largest copying effort in history go next? Obviously there could be more settlement negotiations, but there could also be discovery on a scale that only some of the deepest pockets in the world could conduct. Few other organizations could undertake copying on the scale of the Library Project, today at least. So a final ruling might only affect Google. But it could also be the first reliable roadmap for protecting copyrights while assembling great repositories of works and making them instantly accessible anywhere.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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