Big changes may be afoot in copyright law these days, via both litigation and legislation. Courts are considering sweeping infringement claims with potentially far-reaching implications, and Congress is beginning the process of a massive overhaul of copyright statutes. We provide here a brief rundown of some recent developments.
Authors Guild v. Google
As we have reported previously, the Authors Guild and representative individual authors have been waging a long-running battle in the Southern District of New York against Google’s GoogleBooks project, an effort to digitize the collections of major libraries and make them available for public searching. The plaintiffs allege that the scanning of copyrighted books, and the ability of users to see “snippets” of the books in response to their searches, is a violation of copyright. Google asserts that its actions qualify as fair use.
In 2011, Judge Denny Chin (who now sits on the Second Circuit but still retains responsibility for the case in the District Court) rejected a proposed settlement between the parties largely because of concern about the treatment of “orphan works” (whose authors cannot be located), and the fact that the settlement would affect countless authors’ rights while requiring dissenters to opt out.
Last year, however, Judge Chin certified the plaintiffs as a class consisting of all U.S. authors (or authors’ heirs) whose copyrighted works had been digitized by Google. He reasoned that the court could assess the fair use argument on a categorical basis by creating subgroups or sub-classes – analyzing, for example, fiction, nonfiction, and cookbooks as separate categories.
Earlier this month, the Second Circuit heard arguments in Google’s appeal of the class certification. Google argues that class action treatment of the suit is inappropriate because the fact-specific fair use test must be applied on a book-by-book basis, and because, according to a survey Google conducted, many authors in fact support the GoogleBooks project. Observers found the Second Circuit panel (consisting of Judges Laval, Cabranes, and Parker) to be sympathetic toward Google’s position, and predicted that the Appeals Court might remand the case to Judge Chin to rule on the fair use issue before reaching an ultimate decision on class certification.
Meanwhile, elsewhere in the Southern District, Google logged a victory last week on a class certification issue in a copyright case against its YouTube subsidiary. After ruling for the second time last month that YouTube was protected from copyright infringement claims by the Digital Millennium Copyright Act’s (“DMCA”) safe harbor provision, Judge Louis Stanton, in a companion case filed by the Premier League and a number of other copyright owners, denied the plaintiffs’ request for class certification.
Noting the fact-intensive nature of copyright infringement, fair use, and DMCA safe harbor analyses, Judge Stanton opined that “[g]enerally speaking, copyright claims are poor candidates for class action treatment.” He also pointed out that “the availability of statutory damages [in copyright infringement cases] is designed to give litigation value to each individual case,” thereby diminishing one of the main justifications for a class action approach. It remains to be seen whether the plaintiffs will be able and willing to continue pressing their claims on an individual basis.
One of the reasons cited by Judge Chin for his 2011 rejection of the proposed GoogleBooks settlement was that the settlement attempted to address via private litigation an issue – orphan works – that had impact far beyond the parties to that case. Judge Chin suggested that Congress was better suited to tackle the orphan works issue and had indeed taken steps toward doing so in recent years.
This spring, Congress has taken a much bolder step: in place of the piecemeal approach that lawmakers have taken over the past decade or two in order to patch over problems created by the intersection of traditional copyright law with rapidly evolving digital technology, the House Judiciary Committee has committed to undertaking a comprehensive overhaul of copyright law for the first time since the Copyright Act of 1976. The Judiciary Committee’s Intellectual Property and Internet subcommittee held its first hearing on the subject last week – an initial step in a process that could take many months but promises to provide some clarity on issues that litigants have been attempting to resolve via cumbersome cases that Judge Stanton likened to a “Frankenstein monster posing as a class action.”
We will continue to follow developments on both the legislation and litigation fronts, with the hope that coming months or years may bring greater certainty on issues that have been vexing content creators, new-media companies, and the content-consuming public for quite some time.