Yesterday the Second Circuit issued its decision undoing the District Court’s certification of a plaintiff class in the long-running lawsuit claiming that the Google Books Library Project violates copyright in millions of books. The plaintiffs, the Authors Guild and various individual authors, assert that Google’s practice of scanning and digitizing in-copyright books from major libraries, and making short “snippets” of those books available to the public in response to searches, is an infringement of copyright. The District Court had certified a class consisting of all U.S. authors (or authors’ heirs) whose copyrighted works had been digitized by Google.
In a five-page per curiam opinion, Circuit Judges Laval, Cabranes, and Parker ruled that the District Court should have first resolved Google’s fair use defense, because resolution of the fair use issue “will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact.” The Appeals Court also expressed some approval for Google’s other argument against class certification – that the named plaintiffs were not representative of the proposed class because many class members benefit from and in fact support the Google Books project – although the court did not actually rely on this consideration as a basis for its holding.
The Second Circuit opinion makes no mention of the District Court’s view that it could effectively address the fair use defense by dividing the class into sub-groups or subclasses. Nor does it address Google’s argument that proper consideration of fair use requires a book-by-book analysis. If anything, the opinion seems to assume that the District Court could potentially evaluate the fair use question as it applies to the Google Books project as a whole, without any differential consideration for individual works or groups of works. It remains to be seen how Judge Denny Chin (who himself now sits on the Second Circuit but has retained responsibility for this case in the District Court by designation) will tackle the fair use defense on remand.
As we have noted previously, rejection of class certification in this case is in line with a recent decision by another Southern District of New York judge denying class certification in a similarly expansive copyright infringement case against Google’s subsidiary YouTube. The Second Circuit’s decision makes it even more likely that wide-scale changes in copyright law to address the impact of digital technology will not result from private litigation, and will rather have to await the outcome of Congress’s efforts to undertake sweeping reforms of copyright legislation. We will continue to report on developments in both arenas as they unfold.