Google Books class certification decision vacated and remanded for consideration of Google’s fair use defense

By its July 1, 2013, decision vacating the Southern District of New York’s order certifying the class in The Author’s Guild, Inc. et al. vs. Google Inc., the Second Circuit Court of Appeals provides support for class defendants who seek to bifurcate class litigation on the basis of affirmative defenses.

Here, the appellate court finds that Google’s affirmative defense of ‘fair use’ to plaintiffs’ underlying copyright infringement claims “will necessarily inform and perhaps moot our analysis of many class certification issues,” namely commonality, typicality and the predominance of common questions of law or fact. Cited among the authority supporting the court’s ruling is the holding in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011), “a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims.” 

While its decision turned on the fair use argument, the Court of Appeals further commented in dicta that Google’s alternative argument against certification “may carry some force.” Specifically, Google attacks the typicality requirement of class certification by arguing that the plaintiffs are not representative of the certified class — defined essentially as all copyright holders of books copied by Google without approval — “because many members of the class, perhaps even a majority, benefit from the [Google Books] Project and oppose plaintiffs’ efforts.”

The case is now remanded to the district court for consideration of Google’s fair use defense. Fair use is the long-standing legal doctrine, now codified in the current copyright statute, which sanctions unauthorized copying and distribution of works in furtherance of the public benefit. The statute outlines four nonexhaustive factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. 

Here, Google analogizes its program to that of a super card catalog, which allows for full text searches of millions of books and the display of snippets of these books to would-be purchasers or library patrons. Google argues that its program is fair use because it copies and displays only so much information as is necessary to effectuate its purpose and in a fashion that does not impede, but rather furthers, the economic interests of the rights holders of the original works.

The Google Books litigation has been ongoing since September 20, 2005. In an initial settlement among the parties reached on October 28, 2008 (and later amended), Google reportedly agreed to pay $125 million to settle all claims and proceed with its program, $45 million of which would be paid to the rights holders of the books Google copied without permission. The settlement drew numerous objections, including those represented by the Electronic Frontier Foundation, which is primarily concerned with privacy issues of individuals using Google to find books. This settlement was rejected by the Southern District of New York on March 22, 2011, with the court finding that it would give Google a "de facto monopoly" to copy books en masse without permission. Although the court also advised the parties that many of the objections would be ameliorated if the agreement were revised from an “opt-out” to an “opt-in” agreement, the parties failed to come to terms after several status conferences to consider the matter. 

Read the Second Circuit decision vacating class certification and remanding for consideration of Google’s fair use affirmative defenses.

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