The battle is on. On May 31, Judge Denny Chin rejected Google’s motion to dismiss the Authors Guild as an associational Plaintiff, and granted the Authors Guild’s motion for class certification, meaning that Google’s library scanning program, barring another settlement, is headed to trial as a class action. On its face, the ruling is a setback for Google and a victory for the Authors Guild. But the highest hurdle—a ruling on the legality of Google’s program—is still to come.
“Point to the plaintiffs,” observed New York Law School’s James Grimmelmann, on his blog, the Laboratorium. “This doesn’t resolve the merits of the lawsuit itself, but it does doom Google’s hopes of keeping the lawsuit from ever getting to the merits.”
After more than six years, and an ill-fated settlement proposal, the Authors Guild case against Google could now go to trial as early as September. And, things are set to heat up quickly. Motions for summary judgment are due to be filed by June 14, barring any unforeseen schedule changes.
Chin also granted standing to the American Society of Media Photographers in its parallel class action.
In denying Google’s motion to sever the Authors Guild, Chin squarely rejected Google’s argument that the Authors Guild should be denied standing because the complex copyright questions at the heart of the case, for thousands, potentially millions, of authors require individual assessments. “The Authors Guild has played an integral part in every stage of this litigation since its inception almost seven years ago,” Chin observed. “Only when it became apparent, in 2011, that no settlement would be achieved did Google object to the Authors Guild's participation.”
In light of “commonalities” among the works scanned, Chin held that “individualized analysis would be unnecessarily burdensome and duplicative.” While different classes of works may indeed require different treatments in terms of fair use, he reasoned, those differences may be accommodated by “grouping association members and their respective works into subgroups.” For example, Chin suggested, the Court could create “subgroups for fiction, nonfiction, poetry, and cookbooks.”
In a particularly stinging paragraph, Chin called Google’s scan plan “sweeping and undiscriminating,” and said it would be “unjust” to require authors to sue individually, given that Google did not conduct individualized evaluations before scanning. “Because Google treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis.”
Chin elaborated on this point in granting the Authors Guild motion for Associational Standing—a motion with considerable overlap with Google’s motion to dismiss the Guild from the suit.
“Class action is the superior method for resolving this litigation,” Chin ruled. “It is, without question, more efficient and effective than requiring thousands of authors to sue individually. Requiring this case to be litigated on an individual basis would risk disparate results in nearly identical suits and exponentially increase the cost of litigation.” He concluded that, potential fair use defenses notwithstanding, “every potential class member's claim arises out of Google's uniform, widespread practice of copying entire books without permission of the copyright holder and displaying snippets of those books for search.” Whether this wholesale scanning practice constitutes copyright infringement, he noted, can be assessed “without making individualized considerations.”
Chin also loudly dismissed the relevance of a $100,000 survey of authors commissioned by Google designed to question the Guild’s fitness to represent a broad universe of authors, deeming it "without merit." That survey showed that 45% of 880 author respondents think Google Books is beneficial, and only 19% think it harms them. “This is not a case where the lead plaintiffs, in pursuing their own claims, might compromise the claims of another group of class members,” he explained. Some authors' interests may be different from others, Chin conceded, citing UC Berkeley’s Pam Samuelson’s work on behalf of academic authors. “But…if any author feels that her interests are not aligned with those of the other class members, she may request to be excluded.”
NYLS’ Grimmelmann called the ruling “a big procedural win,” for the Authors Guild—but the stakes are now at their highest. “The case is now definitively headed towards the gigantic fair use showdown everyone expected when it was filed in 2005. Google remains confident of its fair use case, I am sure, as the Authors Guild remains confident of its no-fair-use case. In the next few months, we will see the details.”
Indeed, there are phrases in Chin’s ruling that should give both sides pause. For example, “Google cannot be happy with phrases like ‘sweeping and undiscriminating’ or ‘unauthorized,” Grimmelmann notes. “This paragraph, along with certain passages in the opinion rejecting the settlement last year, suggests that Judge Chin is casting a very skeptical eye on Google’s justifications for the scanning program.”
At the same time, fair use is a complex determination. While the Authors Guild has always maintained the case is about the copying of books, Chin once again seemed to voice a belief that the display of the materials may be be where the fair use rubber meets the road: he expressly states that class member claims “arise out of Google's uniform, widespread practice of copying entire books without permission of the copyright holder and [emphasis added] displaying snippets of those books for search.” Google, on the other hand, has long maintained that scanning books is the only way to capture the text for indexing. How will this all play in the fair use analysis?
In a statement yesterday, Authors Guild executive director Paul Aiken hinted at just how high the stakes may be. “Google has scanned 12 million books,” he noted. “If Google is found liable for infringement, copyright law prescribes statutory damages for willful infringement at not less than $750 and not more than $30,000 per work.”
Although the case before Chin seeks only an injunction to stop Google’s scanning and a declaration that the scanning is illegal, the financial implications of having to settle potentially millions of "willful infringements” claims must be daunting, not to mention other potential effects on Google's core business. In that light, it’s hard not to read Aiken’s statement as an invitation to Google to engage settlement talks once again.
But as it stands, we are headed toward a trial, a situation that seemed almost unfathomable as the settlement steamed toward approval in 2009.