On Monday, the U.S. Court of Appeals for the Second Circuit vacated Judge Denny Chin’s 2012 grant of class action status to the Authors Guild in its long-running suit against Google Books. (For the complete text of the ruling and links to commentary, see infoDOCKET.com.)
The panel called the certification “premature.” It added that the court should first have decided on the merits of Google’s fair use defense, which, the court said, “will necessarily inform and perhaps moot our analysis of many class certification issues,” and “will not prejudice the interests of either party during the projected proceedings before the District Court following remand.”
It does, however, change the methods available to address those fair use questions, according to University of Maryland law professor James Grimmelmann, who has been following and writing about the case since inception. “It seemingly takes away Judge Chin’s ability to use subclasses to focus the fair use questions,” he said.
Grimmelmann also said it might prevent Judge Chin from considering the fair use of books beyond those which are owned by the individual named plaintiffs, though he noted that the appeal did not challenge the Guild’s associational standing. Therefore, Grimmelmann confirmed to LJ, Judge Chin could also consider whether Google’s scanning and use of books written by Guild members other than the named plaintiffs is fair use.
On his blog, Grimmelmann said the appeals court’s action was unusual, and probably indicates that it feels Google’s fair use case is strong. This is not good news for the Guild, which argued in May that “there is no fair-use issue at stake in the case.”
The court also said it felt that Google’s claim that the plaintiffs are not representative of the certified class “may carry some force.” More than 60 academic authors have said the Guild does not represent their interests in this case; in the related case of the Guild versus the HathiTrust, an even larger group of academic authors recently filed a friend of the court brief saying the same.
Intellectual property attorney Jonathan Band, who has written extensively on the Google Books case, told LJ, “There are two ways of looking at this decision. First, it could simply have been an exercise in judicial economy—the Second Circuit was saying, why should we decide the complicated issue of class certification, and whether plaintiffs adequately represent the class, when the case might be mooted on fair use grounds? Second, the Second Circuit could have been signaling to Judge Chin that it thinks the library project is a fair use, and suggesting that he act accordingly. The Second Circuit certainly implied that it thought the argument that the plaintiffs weren’t adequate representatives had merit. In other words, this wouldn’t proceed as a class action if the fair use defense failed.”