Second Circuit Allows Appeal of Class Certification in Google Book Scanning Case

The Second Circuit has added another element of complexity to the Google book scanning case.  Google had objected to the class certification of the plaintiffs in the case, arguing that the Author’s Guild was not representative of the class.  Judge Chin granted certification earlier in the year despite that argument.  The Appeals Court granted Google’s motion for leave to appeal that decision yesterday.  Bloomberg BNA has a write-up on the action with a link to the order. 

The more interesting point of the analysis raised by BNA and the San Jose Mercury News is whether Google has a good case against certifcation.  Both sources state that while the class of authors may have commonality between them, it’s possible their grievances with Google may not be so common enough as to sustain a class action.  Law changed when the Supreme Court issued its opinion in Wal-Mart Stores, Inc. v Dukes. 

The Supreme Court overturned class action status to women who alleged discrimination in Wal-Mart’s employment and promotion decisions, ruling that the degree of discrimination was too variable to apply a remedy across the board to each class member.  The only alternative was anyone who was aggrieved had to sue individually, and if successful, receive a remedy that was unique to that situation.  The Court was not sympathetic to the argument that the ruling would lead to an explosion of litigation, or the alternative that viable plaintiffs may not sue at all.  I have an image of Justice Scalia singing Que Sera, Sera as the response to that one.

It’s possible for Google to raise similar issues with the class members represented by the Guild.  Are all authors affected in the same way by the scanning project to the point where a common remedy (in this case $750 per book) is applicable to the class?  The Guild is using this case to get a ruling that supports its view that any copying for almost any purpose is a violation of the copyright law and to limit any fair use arguments to the contrary.  Are all authors in the class similarly impacted by Google?  In certifying the class, Judge Chin said that the fair use analysis issue does not require individual representation in order to be resolved. True, but what about the remedy?  The briefs on appeal should be very interesting in addressing this issue.  One additional point is that the Second Circuit did not stay the lower court proceeding pending the appeal.  [MG]