The Google Books litigation, now in its eighth year, is not so much out of gas as low on motor oil. It grinds on, with more smoke and noise than forward progress. Last May, Judge Denny Chin certified the case as a class action, setting it on a track to resolve, at long last, Google’s liability in one fell swoop. But this week, the Second Circuit appeals court vacated Chin's order, decertifying the class and sending the case back to him to consider Google's fair use defense.
The Second Circuit decision has its roots in 2011, when Judge Chin rejected the initial proposed settlement, which would have turned Google’s book-scanning program into a giant online bookstore. The Authors Guild picked up the scraps and went back to pressing its case against its erstwhile settlement partner, Google. By moving to certify the case as a class action, the Guild and its lawyers hoped to do two things. First, bringing in millions of authors and their millions of books would scale up the stakes, exposing Google to immense damages and giving the authors more leverage. Second, bringing a class-wide case would emphasize the massive, shelf-clearing scale of Google's scanning program
Google, on the other hand, has argued from the start that its scanning and searching are fair uses, and fair use is always fact-intensive. Thus, Google maintained, class treatment was inherently inappropriate, because it would deprive Google of its day in court: the chance to argue the fair use factors for each individual book. In Google's view, fair use preempts copyright class actions.
Judge Chin’s ruling, however, was optimistic that the class action procedure could accommodate these complexities. For one thing, Google's “uniform, widespread practice of copying entire books without permission” could be evaluated without needing to look at “any individualized considerations.” And for another, fair use could be evaluated at the level of “a particular type of book,” rather than book-by-book.
On appeal, the Second Circuit's short five-page opinion didn't quite play Google’s fair-use ace, but didn’t quite discard it either. The court agreed with Google in saying that fair use bears on many of the perquisites to class certification, such as whether the common questions in the case predominate over the individual ones. But instead of holding that the looming shadow of fair use makes class certification impossible, the Second Circuit sent the case back for Judge Chin "for consideration of the fair use issues.”
The difference is one of those procedural distinctions that lawyers love to hate, and everyone else simply hates: the proper sequencing of issues. Judge Chin put class certification first, and would have gone on to consider fair use at a later date. But the Second Circuit held that fair use is a horse, not a cart, so it must come first. In theory, Judge Chin is free to recertify the class once he deals with fair use.
In practice, though, it’s unusual in class actions to insist on dealing with the defenses first. Google and the Authors Guild didn’t even ask Judge Chin to rule in their respective favor on fair use until after his class certification decision was in. At the most, an appeals court would tell the trial court to consider the defense as part of class certification. Indeed, if you take seriously Google's argument about individual books, it’s impossible to resolve the fair use issues until you know which books are in the class.
The only good countervailing reason to take up fair use first is if you think that Google’s fair use defense is so compelling that it will win on every book, from AC1 to ZA5190, thereby ending the lawsuit and making it unnecessary to deal with the complexity, expense, and aggravation of a class action.
Indeed, the court wrote that the fair use question could “perhaps moot our analysis of many class certification issues.” Since this was a class certification appeal, the Second Circuit couldn’t just decide the fair use question itself. And the opinion doesn’t tell Judge Chin what to do, or even strongly suggest. But it does, perhaps, suggest what three judges of the Second Circuit, Pierre Leval, who wrote the leading article on fair use think of it.
Judge Chin may not be inclined to move quickly on the fair use ball that has just been lobbed back into his court. The authors’ related lawsuit against Google's library partners, which led to a fair use ruling in favor of the libraries last fall, is ongoing. That case is now also before the Second Circuit, and whatever it decides there will be highly relevant, perhaps even conclusive, in determining whether Google itself is engaged in fair use. Judge Chin might well slow-walk the fair use remand in the hopes that the Second Circuit will decide the issue for him in the near future.
Today's ruling, in other words, is good news for Google straight down the line. The one remaining advance the Authors Guild had made in the past eight years of litigation has now been beaten back. Judicial assessments of Google Books have tipped, if ever so slightly, towards finding it definitively legal. And Google’s defense team has run another year off the clock. The grinder grinds on.
