As we reported late last week, Google has filed a petition with the Second Circuit Court of Appeals asking for an immediate appeal of the Authors Guild’s class certification granted by Judge Denny Chin at the end of May.
The actual filings do not offer much detail, but ask the court to consider two core questions raised by Google: whether “class plaintiffs seeking to stop alleged copyright infringement can adequately represent class members who benefit from the [Google’s scanning] and want it to continue,” and “whether, in a copyright infringement action in which the principal issue is fair use of a vast array of different kinds of works, individual fair use issues predominate, precluding class certification under Rule 23(b)(3).”
While the appeal could lead to a stay as the appeals process plays out, that isn't automatic, and may not be likely. “The case proceeds in the District Court while the Second Circuit decides whether or not to hear the appeal,” explained New York Law School’s James Grimmelmann at his blog, the Laboratorium. “And, even if [the court decides to hear the appeal] there’s no guarantee the case will be stayed.” That means we are still set to see motions for summary judgment on June 26, as scheduled, and a trial could still begin in early September.
The “real surprise,” contained in the filings, Grimmelmann added, is that Google has added former solicitor general Seth Waxman, to their team. “Waxman is one of the country’s all-star appellate litigators,” Grimmelmann observed, noting that “Google "has the money and motivation to hire the best.”
In his recent ruling, Chin rejected the argument Google is now asking the appeals court to review. “Class action is the superior method for resolving this litigation,” Chin wrote, concluding that, “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.” Because Google “treated the copyright holders as a group,” he found, “copyright holders should be able to litigate on a group basis.”
The appeal sets up yet another interesting twist in the long-running case: Chin was promoted to the Second Circuit Court of Appeals in April, 2010, but he kept the Google case, sitting by designation with the district court. Google’s petition now means that Chin’s colleagues on the Second Circuit are in a position to potentially strike down his recent decision.
