In an order filed Monday morning, the Second Circuit Court of Appeals granted a stay, with the consent of the parties, in the Authors Guild vs. Google case until after it issues its decision on Judge Denny Chin’s May 31 ruling granting the case class action status. The stay comes just a month after Chin expressly denied a stay to Google, noting that the procedural issue would not affect the merits of the case. Google, however, filed a motion with the Second Circuit again asking for the stay, which this time was consented to by the Authors Guild, and was thus granted by the court. The order means that the current schedule, which had oral arguments set for December 4, is now postponed indefinitely. The Authors Guild had recently won a delay in the proceedings due to a serious medical emergency among their counsel.
In its motion for a stay, Google pressed the same argument that was denied by Chin. “Without a stay the district court will consider and likely adjudicate the principle issues in this case before the Court of Appeals reaches a final decision on class certification and thus before the class notice and opt-out period,” Google’s appellate counsel, Seth Waxman argued. “Adjudicating the merits of this case before absent class members decide whether to opt-out—as is likely absent a stay—unfairly forces Google to risk a total classwide defeat with a judgment of potentially billions of dollars while offering it the chance for only a greatly diminished victory.”
In its brief response, the Authors Guild agreed to the stay, but not with Google’s reasoning. “Plaintiffs-Appellees do not oppose a stay of the district court proceedings pending resolution of this appeal, and agree that a stay in the present circumstances will promote the orderly disposition of this case,” the guild brief states. “Plaintiffs-Appellees disagree strongly, however, with Google's arguments opposing the class, and believe that upon appellate review the district court’s class certification order will be affirmed.”
In his August 17 decision denying a stay, Chin, a member of the Second Circuit Court of Appeals sitting by designation on the case at the district level, appeared eager to move the case off his plate. He noted the case was now nearly seven years old, was almost fully briefed, and would have to be decided on the merits eventually, whether as a class action or on the basis of the named plaintiffs. He'll now have to wait a little longer to dispatch with his last holdover case. By Chin's own estimate, the stay could delay the litigation by a year or more.
If the Second Circuit does eventually reverse Chin’s decision to grant the Google case class action status, the case would not be over. Instead, the case would proceed on the basis of the three-named plaintiffs. If the Second Circuit reverses, however, it could certainly certainly impact the litigation, possibly in terms of the case's financing. The delay could also open a window to negotiate a new settlement. Meanwhile, a trial in a parallel case, the Authors Guild vs. Hathitrust, is awaiting a decision on the cross motions for summary judgment, and barring a decision at that stage, is on track for a November trial.
The Google appeal comes after Chin granted the Authors Guild’s motion for class certification, rejecting Google’s argument that the complex copyright questions at the heart of the case, for thousands, potentially millions, of authors require individual assessments. "Class action is the superior method for resolving this litigation," Chin ruled, concluding 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."
