Judge Denny Chin did not find Google’s survey showing that many authors have different views of the damage done them, if any, by Google Books, reason enough not to certify the class. “That some class members may prefer to leave the alleged violation of their rights unremedied is not a basis for finding the lead plaintiffs inadequate,” he said.
Though the survey showed many authors considered being scanned by Google Books a benefit, Chin did not consider that sufficient reason to think their interests are at odds with the lead plaintiffs because the survey did not ask whether they would want to be part of a law suit through which they might recover damages. “It is possible that some authors who ‘approve’ of Google’s actions might still choose to join the class action,” he said.
The judge did not address Google’s proposal of collateral estoppel, in which other authors could take advantage of a ruling in favor of the named plaintiffs; instead his decision contrasted the efficiency and uniformity of class action with “requiring thousands of authors to sue individually.” Nor did he address the academics who objected to being included in class certification.
Intellectual property lawyer Jonathan Band shared his personal view with LJ. “I’m perplexed that the court found that the class interests were too diverse for settlement purposes, but not for class certification purposes,” he said.
Besides granting class certification, Judge Chin dismissed Google’s bid to get rid of the associations as plaintiffs, on the grounds that, while some individual participation may be required, it’s not too much for associational standing. (The Authors Guild is the only associational plaintiff in the Authors Guild action. However, associational plaintiffs in the American Society of Media Photographers action include the Society, plus the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, and Professional Photographers of America.)
According to Chin, only association members who assigned their copyrights to a third party yet retain a beneficial interest would need to demonstrate that, which the judge feels is manageable. He also pointed out that Google did not object to the Guild’s participation in the case until after the proposed settlement was rejected last year.
Chin also rejected Google’s argument that its fair use defense requires individual consideration, saying creating subgroups among the works is sufficient, and pointing out that Google did not make its decision to use the work on an individual basis in the first place. “Because Google treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis.”
“Google cannot be happy with phrases like ‘sweeping and undiscriminating’ or ‘unauthorized,’” James Grimmelmann, professor of law at New York Law School, said on his blog. “This paragraph, along with certain passages in the opinion rejecting the settlement last year, suggests that Judge Chin is casting a very skeptical eye on Google’s justifications for the scanning program. I have to wonder whether the settlement dance ended up hurting Google by making Judge Chin’s first substantive experience with the case one that emphasized the blanket nature and huge ambitions of Google’s scanning.”
In its public statements, at least, Google seems unfazed. “As we’ve said all along, we are confident that Google Books is fully compliant with copyright law,” Maggie Shiels, a Google spokeswoman, was quoted by Bloomberg as saying. “Today’s decision doesn’t determine the underlying merits of the case, nor does it resolve the lawsuit.”
The Guild, however, was celebratory. “We’re one big step closer to justice being done for U.S. authors,” said Authors Guild president Scott Turow.
Said Band, “I think it would be a mistake to read too much into the rulings so far as to how the court would rule on the fair use issue. This case still has a long way to go, and can continue to take many unexpected turns.”
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