The next instalment in the Google Books copyright class action

The Google Books class action saga has moved a step closer to hearing.  But first, a recap.  As avid readers of IP Whiteboard will know, Judge Chin rejected the amended settlement agreement on anti-trust grounds, and because it was a “forward looking business arrangement” that authorised Google’s future conduct.

For further background information, see our previous post containing a summary of the case to date and Judge Chin’s reasoning for rejecting the Google Books Amended Settlement Agreement.

Now, Judge Chin has granted class certification to the Authors Guild, so they may sue Google for copyright infringement of books scanned and indexed in Google Book Search Project.  (For Australian readers interested in class actions, the USA has a certification process – essentially a hurdle – if you want to bring a class action, which we don’t have here.)

Who is the Authors Guild?  The Authors Guild class includes all US authors and their heirs with a copyright interest in books scanned by Google as part of its Library Project.  With 12 million books scanned under the program, class members would no doubt be in abundance.

Judge Chin also denied Google’s motion to dismiss the claims of the Authors Guild and the American Society of Media Photographers for lack of standing.  The Authors Guild and the American Society of Media Photographers represent all US owners of copyright in those literary and artistic works, respectively, which Google has copied en masse without authorisation.

Can a defence of Fair Use be adequately determined in a class action?

Under US law, an association such as the Authors Guild has standing to bring a suit on behalf of its members when: (a) its members would have standing to sue in their own right; (b) the interests the association seeks to protect are central to its purpose; and (c) the claim asserted and relief sought does not require the participation of individual members in the lawsuit.  

Google’s defence is “fair use” under section 107 of the US Copyright Act (17 U.S.C. §107), on the basis of its promotion of wide public access to books.  Whether fair use is made out depends both “the nature of the copyrighted work” and “the effect of the use upon the potential market or for value of the copyright work”, which Google argued requires an individual enquiry. 

For instance, is it a creative work or a non-creative work?  Does the display of a snippet of a copyright work affect the market for in-print books more than out-of-print books?  Given the breadth of works scanned in the Book Search Project, Google argued that individual member participation was required.

Judge Chin found that the variety of works could be accommodated by grouping association members and their respective works into subgroups to assess the fair use defence – from fiction and non-fiction, poetry and cookbooks, photographs and illustrations.  As a matter of fairness, as Google copied and made search results available en masse and “treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis”.

Class certification

The court found that the Authors Guild first met the four prerequisites of numerosity, commonality of questions of law or fact, typicality of the claim between the plaintiffs and the adequacy of representation.  Google disputed the “adequacy” requirement, arguing that a survey showed most class members perceive Google’s copying of their work as a benefit, creating a conflict of interests between the named plaintiffs and absent class members.

As every potential class members’ claim arises out of Google’s widespread practice of copying entire books without authorisation and displaying snippets of those books, Judge Chin was satisfied that the questions of law or fact common to the Authors Guild class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Judge Chin’s full decision is available on the Authors Guild blog here.  He will next hear summary judgment motions on the case in September.  The Authors Guild has stated that if the claim is successful, Google could be held liable for statutory damages of between $750-$30,000 per work.