It’s been awhile since we’ve heard substantive news from the Google Books lawsuit—for those who need a quick recap, there was a pretty good summary of the suit in the New York Times when it was filed—but this month brought a quiet bombshell.
Last year, Judge Denny Chin certified class status for the Authors Guild and the American Society of Media Photographers in their lawsuit against Google. Google appealed that decision, and on July 1, the Second Circuit Court of Appeals vacated Judge Chin’s certification, saying that a “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot [their] analysis” of class certification. In other words, the appellate court feels that Judge Chin jumped the gun in approving the class status of the plaintiffs—he should first have analyzed the merits of Google’s fair use defense. If Google’s use of the copyrighted content is found to be fair, the Second Circuit said, then that finding would itself have a material impact on the issues at play in the class certification, and perhaps even make the plaintiffs’ class status a moot point.
In its appeal, Google had contended that in seeking to certify a class of “all persons residing in the United States who hold a United States copyright interest in one or more of the Books reproduced by Google as part of its Library Project,” the plaintiffs overreached. But while the appellate court’s decision hinted at sympathy toward that view, it explicitly pushed that issue aside and focused instead on the cart-and-horse issue of class status and fair use.
At his always-useful Laboratorium blog, University of Maryland law professor James Grimmelmann pointed out that such a move is rather unusual, and suggested that the appellate court’s decision
takes away Judge Chin’s ability to use subclasses to focus the fair use questions, or even to consider the fair use of books other than those which are owned by the individual named plaintiffs. Without a class, all the other books — some perhaps with different or stronger fair use cases — are off the table, and not properly before the court.
Even more interesting, though, is what Grimmelmann says in his next paragraph (emphases mine):
My best guess, based on the opinion and what I have heard about the oral argument, is that the judges on this appeal were convinced that Google has a winning fair use defense across the board. It’s not a fact-dependent defense, one that would work for some of the books owned by class member but not for others. Rather, it’s a general defense, one that would render class certification itself irrelevant, even “moot the litigation.” The court’s quotation of Wal-Mart v. Dukes language that a defendant is “entitled to litigate its statutory defenses to individual claims” also suggests that it believes the fair use ruling will go in Google’s favor rather than the plaintiffs’.
Grimmelmann is not alone in this assessment. Publishers Weekly characterized the decision as a “significant blow to the Authors’ Guild’s chances of success” in the lawsuit; Forbes copyright commentator Emma Woollacott says that the ruling sends “a very strong signal to Chin that fair use does indeed apply” in this case.
Only a couple of years ago, most commentators were saying that the Google Books project was dead in the water. It now seems clear that the Second Circuit’s decision breathes new life into it. If Google’s fair-use argument ends up being confirmed by court decision—an outcome that looks much more likely now than it did two weeks ago—the repercussions for how we think about and apply fair-use principles will be huge.