Authors suffer setback in Google Books case

02-07-2013

The US Court of Appeals for the Second Circuit has reversed a court order that would have allowed an association of authors to challenge Google’s online library project, Google Books, as a group.

The appeals court found that district court judge Denny Chin should have considered Google’s fair use defence before deciding to certify the authors as a class.

Writers group the Authors Guild sued Google for copyright infringement in 2005, seeking injunctive and declaratory relief as well as damages. It claimed the Google Books programme infringes copyrights by making snippets of more than 20 million books freely available to Internet users who search for them.

On July 1 circuit judges Leval, Cabranes and BD Parker reversed the prior decision that certified the plaintiff class, and  remanded the case to the district court to reconsider Google’s fair use defence.

The judges wrote in the decision: “Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class – an argument which, in our view, may carry some force – we believe that the resolution of Google’s fair use defence in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues.”

Paul Fakler, partner at law firm Arent Fox in New York, said that on its face, the appeals court’s decision is straightforward. “Fair use is a multi-factor inquiry that is very fact-specific,” he said.

“If you find that fair use is too fact-specific and requires too much complex analysis by different types of plaintiffs, then that itself goes against granting class certification.”

He said that although pursuing lawsuits as a class is efficient – because they determine damages in one action and can eliminate the need to involve potentially millions of separate claims – they are not “good fits” for copyright infringement cases, as the rights holders are not necessarily harmed in the same way.

“Some might argue that none of the authors are harmed,” he said, “but the amount of harm done to a best-selling author would be very different from the harm to an academic author.

“In the copyright world, it’s usually wiser to bring a case with a handful of plaintiffs as a regular case, establish the principle and understand that you’re not going to get a massive amount of damages,” he added.

Fakler predicted that the case will be referred back to the Second Circuit: “This is a key technology fair use case,” he said. “A decision on the Google Books programme will have implications for all sorts of digital media uses.”

The Authors Guild and Google did not respond to requests for comment.

This article was first published on 03 July 2013 in World IP Review

Google, Google Books, Authors Guild, copyright infringement, Second Circuit

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