In its filing, Google again raised the issue of “whether class plaintiffs seeking to stop alleged copyright infringement can adequately represent class members who benefit from the defendant’s conduct and want it to continue.” Google further argues that this “is a ‘novel legal question … of fundamental importance to the development of the law of class actions,’ […] and the district court’s answer conflicts with the decisions of other circuits.”
Chin had dismissed this argument because the survey Google cited did not specifically ask respondent authors about their stance on participating in a class action suit. He raised the possibility that an author might believe they benefited from Google Books and still decide to participate in a class action suit. Google’s attorneys don’t address that possibility in their appeal document.
Central to Google’s appeal is the idea that opting out of the class action is insufficient remedy for authors who believe they benefit from Google Books. “The court thought of this simply as a case where some authors want to press their legal claims and others do not, but that was wrong.[…] If plaintiffs succeed in dismantling Google Books, absent class members who benefit from the project will be in no position to resurrect it, whether they opted out or not.”
Google also revisited the individual fair use defense argument that Chin found unpersuasive because Google had made its decision to use the works in the first place by groups and not individually.
According to Publishers Weekly, the appeal was filed with the U.S. Second Circuit Court of Appeals, which is the court Judge Chin now sits on. He was promoted to the Second Circuit Court of Appeals in April 2010, but kept the Google case, sitting by designation with the district court. “Obviously, Judge Chin won’t be one of the judges considering the appeal; this move does put his colleagues in the slightly unusual position of hearing an appeal from one of the fellow members of their court,” Professor James Grimmelmann of New York Law School said on his blog, The Laboratorium.
The Guild could not be immediately reached for comment.