Authors Guild, Inc., et al. v. Google Inc.
By Jonathan Sapp – Edited by Michelle Sohn
Authors Guild, Inc., et al. v. Google Inc., 12-3200-cv, (2d Cir. July 1, 2013)
The United States Court of Appeals for the Second Circuit vacated and remanded the lower court’s certification of the plaintiff class. The Second Circuit held that class certification should not precede a determination of Google’s fair use defense. The determination of the defense will “necessarily inform and perhaps moot” the Second Circuit’s analysis of class certification issues. Author’s Guild, Inc. v. Google Inc., No. 12-3200-cv, slip op. at 4 (2d Cir. July 1, 2013). In so ruling, the court cited the Supreme Court’s decision in Dukes, which held that a “class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011).
NBC News and Reuters provide overviews of the case. Lathrop & Gage, LLP’s “Media, Privacy & Beyond” blog speculates that the court’s ruling may place fair use as “an insurmountable hurdle to copyright class plaintiffs.” Paid Content notes that the ruling may create tension in the Circuit since it vacated the decision of Judge Denny Chin, who now sits on the Second Circuit.
In 2005, The Authors Guild sued Google for its Library Project, which featured a Google Books search tool allowing users to browse “snippets” of books. Google argued that the project is designed to broaden an author’s audience and a reader’s library, thus providing a reciprocal benefit. However, The Authors Guild argued that Google committed copyright infringement by scanning more than twenty million books and providing excerpts of each online. The Authors Guild pursued the case as a class action lawsuit, defining the class as “(a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors.” Authors Guild v. Google, Inc., 282 F.R.D. 384 (S.D.N.Y. 2012) vacated in part sub nom. Authors Guild, Inc. v. Google Inc., 12-3200-cv, (2d Cir. July 1, 2013). Judge Chin, then sitting for the U.S. District Court for the Southern District of New York, granted class certification. Google appealed the class certification on the basis that its fair use defense may moot the litigation and that the plaintiffs were not representative of the certified class.
The Second Circuit deemed the Judge Chin’s class certification premature. While the Second Circuit stated that Google’s claim that plaintiffs were not representative of the certified class “may carry some force,” it did not directly address this issue. Author’s Guild at 4. Agreeing with Google that a fair use analysis may moot many class certification issues, the Second Circuit vacated the Judge Chin’s class certification and remanded the case for determination of Google’s fair use defense.
The Second Circuit’s opinion establishes yet another hurdle for class certification. The Second Circuit’s vacating of class certification develops a framework that constricts class action in copyright cases. The case will also determine whether the scanning and displaying of snippets of copyrighted works online, without the author’s consent, constitute a copyright violation.