Judge Chin heard oral argument in the Google Books case on May 4 and ultimately reserved decision. The parties will go ahead with their summary judgment motions, with oral argument scheduled for September.
According to New York Law School professor James Grimmelmann’s Labortorium blog, Google argued that individual authors, not the Author’s Guild, should be the plaintiff because each author will present sufficiently different issues that their individual participation will be required.
Under questioning by the judge, Google’s lawyer admitted that Google’s fair use decisions were made by categories of works, not on a case-by-case basis, but used a survey of authors to contend that whether authors are helped or harmed by inclusion in Google Books really does vary with each individual’s circumstances. To prove this point, Google commissioned a survey of more than 800 authors about their opinions regarding the project.
According to Mediapost, the majority of respondents, 58 percent, said they approved of Google scanning their books, while 28 percent were neutral and 14 percent objected. Almost three out of four respondents, 74 percent, said they don’t believe that Google’s scans would affect them financially, while 19 percent said they have or would benefit and 8 percent said they have or would be harmed. Google’s lawyer, Daralyn Durie, said it was “very telling” that the Guild did not survey its own membership rolls. Instead, the Guild has a pair of expert reports that it claims help establish common economic harm to authors.
The Guild argued that royalties are a typical feature of publishing contracts, making the authors beneficial owners entitled to sue, and that in any case the Copyright Act makes copyright registrations prima facie evidence of ownership, so the burden of proof would be on Google to show that a particular author didn’t retain standing. As for fair use, “There is no fair-use issue at stake in the case,” said Joanne Zack, the Guild’s lawyer, according to PCWorld.
According to USA Today, Zack also argued that the authors should be certified as a class because millions of them would not have the money to go to court and might be intimidated fighting a company as large as Google. “This action calls for mass litigation to adjudicate the mass digitization,” she said.
Judge Chin raised the possibility that proof of ownership could be deferred to the remedy stage of the lawsuit, and asked whether Google really wanted to litigate millions of ownership questions individually; Google proposed collateral estoppel as an alternative to an associational plaintiff or class action. (In collateral estoppels, according to Grimmelman, if Google loses against three named plaintiffs on a genuinely shared issue, then other authors will be able to come into court and take advantage of the ruling.)
Intellectual property attorney Jonathan Band, who has published extensively on the Google Books case, shared his personal views on the issues with LJ. “I think there should not be associational standing because the diversity of interest is too large…Class certification is even more problematic because the scale is so much larger, as is the possible diversity of interest. Even if you broke the class down into subclasses… An author of a novel that sold 500 copies has very different interests from a bestselling novelist,” said Band. Add in the different priorities even between people in the same circumstances and it becomes very complex.
“A collateral estoppel approach would be much simpler,” said Band. “A few plaintiffs would go forward and litigate the fair use issue. If Google loses, then the other ‘aggrieved’ authors would have the burden of stepping forward… Given the relatively small sums that would be available to any author, and the relatively few authors that would have clear ownership of the copyrights in their books, this opt-in approach would be much more manageable.”
Although Google and the Guild had come to a settlement at one time, since Judge Chin rejected it on the grounds that it should be opt-in rather than opt-out, the parties have not seemed close to a new resolution.