Class Cert. Vacated; Evaluate Google's 'Fair Use' Defense First

Today was another bad day for the Author's Guild, the collective of copyright holders who are suing both the HathiTrust Digital Library and Google Books over their online mega-catalogs. Both services scan the text of books, in-copyright or out-of-copyright, and stores that information online, in a massive searchable database. A user's query brings up an excerpt of the book, along with page number, title, and author.

Like we said, because it only provides excerpts, it's essentially a mega-catalog. And while the Author's Guild's lawsuit against the HathiTrust was defeated in the name of fair use in the lower court, and may suffer the same fate on appeal, their lawsuit against Google Books remained, and thanks to a lower court's ruling, had even certified a class.

Consider that class de-certified, then.

The Second Circuit vacated the lower court's class certification and remanded with explicit instructions to evaluate the "fair use" defense first, as the court felt that such an evaluation would "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."

While the Second Circuit didn't (yet) agree that the Author's Guild was an unsuitable class representative, they did state that it was "an argument which, in our view, may carry some force."

Last month, in our update of the HathiTrust case, we noted that the amicus curaie briefs, especially one submitted on behalf of a group of law professors, made that exact argument. They argued that inclusion in the HathiTrust was (duh!) good for them because it gave them greater exposure and gave users only partial access to the materials. That theoretically should increase the sales of copyrighted materials.

The Author's Guild, which seeks to represent every person holding a copyright, therefore is litigating against the professors' best interests.

Google pressed that same argument here, and the court seems likely to agree. Should the fair use defense fail, and the lower court recertify the class, they'll get that chance, as the panel, "in the interest of judicial economy," ordered that any further appeals of the case end up assigned to this same panel.

The vacated class certification, hints of fair use defense, and the court's favorable take on the unsuitable class representative argument all point to a bad day for the Author's Guild. One wonders if the opinion, which went a bit further than necessary with its discussion of undecided issues, was intended for push the parties towards settlement.

Related Resources:

• Author's Guild v. Google, Inc. (Second Circuit Court of Appeals)
• Have College Professors Become Digital Pirates? (FindLaw's Technologist Blog)
• 2nd Circuit: Like Beauty, Fair Use Is in the Eye of the Beholder (FindLaw's. U.S. Second Circuit Blog)