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.
14 Thoughts on "Google Wins One: No Class Status for Authors Guild"
I personally have never understood why Google’s use wouldn’t be considered “fair use.” It’s just a modern version of storage and excerpting. It’s fascinating to watch this grind through the system.
It does seem odd–if it’s not fair use, then the entire concept of a search engine is illegal.
There’s also the counterbalance between those behind this lawsuit, who see Google making money by selling ads next to tiny snippets of book content and wanting a piece of that revenue with the overall concept that this is a tool that will lead to greater awareness of book content and likely increased book sales.
I suppose the one good thing that comes from having the class status denied is that we’re free from the shadow of the proposed settlement, which would have given Google sole dominion over the entire cannon of orphan works…
As I understand the publishers’ position, they don’t object to the searchability of the digitized texts — what they object to is the fact that Google scanned the texts in their entirety and created complete copies of them, en masse. Copyright law does allow complete copying under some circumstances, even though it fails one of the four fair use tests (the “substantiality” test) completely; the example enshrined in law is that of the LP owner who makes a cassette copy to play in his car. But as I understand it, the publishers are arguing that the Google project is such a different thing that the substantiality test should be given greater weight. I think that’s a fairly weak argument, and it seems that the Second Circuit thinks so too.
The crux of the argument against Google’s library project had nothing to do with “snippets.” It had to do with Google’s giving each participating library a copy of the digitized work, to use however it wanted. The provision of Google’s agreement with the participating libraries deprived the copyright holders of the potential sale of digitized copies of their works to those same libraries, thus impacting the fourth fair-use factor. The fact that the libraries generally felt they could not do much more than deposit the digital copies in a dark archives does not undermine the argument that a sale was displaced.
As for the Second Circuit’s attitude, don’t be so sure it will favor Google. One member of the appeals court, Pierre Leval, is the author of the 1990 Harvard Law Review article in which the concept of “transformative use” was first articulated. It later became a touchstone for many fair-use cases after the Supreme Court followed Leval’s reasoning in the 1994 landmark Campbell vs. Acuff-Rose (“Pretty Woman” parody) case. But the cases using that concept in the Ninth circuit differ significantly from how Leval framed it, because the Ninth Circuit did not insist on the value added by human creativity as the core meaning of “transformative” but instead adopted a purely functional interpretation such that a computer algorithm’s operation suffices for creativity. I have argued this point at length and in considerable detail in a number of articles about transformative use, which can be found here: http://www.psupress.org/news/SandyThatchersWritings.html. this view has also been articulated in the AAP’s amicus brief in the HathiTrust case, which is the only copyright case so far decided in the Second Circuit that follows the Ninth Circuit’s lead.
The fact that the libraries generally felt they could not do much more than deposit the digital copies in a dark archives does not undermine the argument that a sale was displaced.
Actually, it undermines that argument considerably. Libraries don’t generally buy ebooks so they can put them in dark archives; they buy them so they can make them available to patrons. The copies provided by Google are unusable for this purpose, since—if also available commercially under license—they can’t be made available to patrons without an arguably indefensible breach of copyright law. This provides a strong incentive to libraries to pay for legitimate access where a licensed e-copy of the book is both available and desired, and thus substantially undermines the argument that a sale was displaced.
Then explain why, when Penn State Press offered to Michigan to license a wider range of uses for its Google digital copy in exchange for Michigan’s giving Penn state a digital copy, Google nixed the transaction. And, by the way, when the Google library project was first announced, it was by no means clear how many uses the libraries would make of their digital copies. It was only later that, presumably on the advice of counsel, they decided it would be wise not to use them for more than search and preservation purposes–which, of course, are still valuable uses that they might have paid something for to the copyright holders.
Then explain why, when Penn State Press offered to Michigan to license a wider range of uses for its Google digital copy in exchange for Michigan’s giving Penn state a digital copy, Google nixed the transaction.
You mean, why would Google nix the transaction despite the fact that the library still had an incentive to purchase an access license to a commercially available ebook despite owning a dark-archive copy from Google? Sorry, but the question is a non sequitur. I don’t see what the library’s incentives to obey the law have to do with Google’s decision to assert control (whether rightly or wrongly) over copies it made.
If making the copy for the library was fair use, and the library’s use of it was also fair, why wouldn’t giving a copy to another non-profit entity also be a fair use, especially since it was our copyrighted work in the first place?
If what you were proposing to do fell within the bounds of fair use, then it made no sense to ask Google for a license. You should have simply proceeded.
You’re confused, Rick. What Penn State wanted to do was sell a license to Michigan, in exchange for getting a digitized copy. Making a digitized copy of our own books didn’t even raise any questions of fair use. We weren’t asking Google for a license. We asked Michigan to purchase a license from us. It was that transaction that Google nixed. But my question is: if the making of the digitized copy by a third party like Google was itself fair use, as Google and Michigan claimed, then why wouldn’t Michigan’s giving us a digitized copy also be fair use?
You’re confused, Rick.
Sure am, since you’re bouncing back and forth between asking me to explain why Google rejected a licensing proposal (a question I obviously can’t answer) and asking me to evaluate a fair use case without any of the information that would make such an evaluation possible.
My question is: if the making of the digitized copy by a third party like Google was itself fair use, as Google and Michigan claimed, then why wouldn’t Michigan’s giving us a digitized copy also be fair use?
The question isn’t answerable. To evaluate a fair use argument, you need to know more than just who gave a copy to whom. (But in any case, the real question is: who told you that your proposed use wasn’t fair, and why did you listen to them?)
That’s not the right question to ask, Rick. We could not obtain a digital copy unless Michigan gave it to us, with Google’s permission. It’s a question Michigan’s lawyers might have asked Google, however.
We could not obtain a digital copy unless Michigan gave it to us, with Google’s permission.
Of course you could have. If what you were proposing to do fell under fair use, then Michigan could have simply given you a copy without permission — it’s in the nature of fair use that you don’t have to ask. So if Michigan asked Google for permission to give you a copy of one of their Google-scanned books, that implies that the folks at Michigan believed two things: first, that whatever you guys were going to do would fall outside the bounds of fair use, and second, that Google had the right to grant the necessary permissions.
In any case, it makes no sense for you to ask me why Michigan or Google or PSUP believed or did any of the things they believed or did. Only those who were party to the circumstances and the proposals can answer those questions. (Nor are they relevant to the issue that gave rise to this conversation, which was whether or not Google-scanned copies remove the library’s incentive to purchase licensed copies.)