The Google Book Settlement may be dead, but the litigation lives on. On December 12, attorneys for the Authors Guild filed a motion for class certification, hitting the deadline set forth by Judge Denny Chin at a September 15 status conference on the now abandoned settlement. The filing is the first step in the next incarnation of the long-running legal drama over Google’s program to scan library books to create an online index, and could ultimately lead to a ruling as to whether Google’s book scanning amounts to copyright infringement.
The brief offered no surprises, putting forth a fairly straightforward statement of facts from the perspective of the Authors Guild. “Google’s scanning project has a commercial purpose,” the brief states. “Google undertook the Google Library Project to gain a competitive advantage over other participants in the search engine market, by offering a wealth of content not available elsewhere. Google uses the works obtained from libraries and other sources to attract visitors to its website, thereby increasing its attractiveness to advertisers.”
Google will now have an opportunity to file its answer to the Authors Guild motion, due in January. In its brief, the Guild acknowledges that Google will argue a “fair use” defense, and that the Guild will rebut that defense, including evidence that: Google has copied entire works without permission or compensation; for commercial reasons; that Google has distributed digital copies to libraries; displays multiple excerpts of verbatim expression; and that the books are “at risk of further unlawful distribution, because Google's security measures may be breached due to the actions of outside parties, employee error, malfeasance, or otherwise.”
Noticeably absent from this filing, meanwhile, are the publishers. At the September 15 hearing in Chin’s courtroom Google and the publishers indicated they were close to a separate settlement, leaving the authors to pursue litigation—or a settlement—on their own. While the parties are in talks, no seperate deal has been announced.
The guild argues the class should be approved because individual claimants “could not as a practical matter effectively assert alone against Google” such claims of infringement, and that “those claims are presented far more fairly and efficiently than they would be in individual actions, which would require the same issues to be litigated multiple times.”
However, the brief in support of the motion does not address concerns about adequate class representation raised throughout the settlement process, specifically whether the guild, an organization which represents a sliver of the wide universe of authors, can effectively speak for the varied, and divergent interests of “authors” writ large. Critics like UC's Pam Samuelson, and D.C. attorney and author Scott Gant have argued there should be multiple classes all with different counsel.
"Presumably, Google will bring this up in its reply, at which point the plaintiffs will explain why they think they can represent orphan works and academic authors," New York Law School professor James Grimmelmann told PW. "They had a chance in this motion to get out in front of the issue, and chose not to take it." The guild obivously does not want multiple classes, he adds. "That would mean separate counsel, which would require giving up a lot of control over the lawsuit."
Meanwhile, although Google's response to the Guild motion isn't required until January, it is likely going to get in a swing at the Guild before then, as Judge Chin has given Google until December 23 to file an anticpated motion to dismiss. While that motion is not likely to succeed, experts say, it may very well have an impact on the litigation.
"In its motion to dismiss, Google is likely to contest just a subset of the issues," Grimmelmann surmises, "such as the Authors Guild's standing to be in the case as an associational plaintiff. It's highly unlikely that the really meaty issues, like fair use, will be decided at that stage." Then, in January, Google will file its response to the the Guild's class certification motion. "That is going to be a detailed, well-briefed argument," Grimmelmann, predicts. "I don't know what Judge Chin will do with those overlapping motions, but some of the issues in the motion to dismiss are likely to substantially affect the class certification question."