November 14, 2012
Google Asserts Fair Use To Defeat Class Action Status In Book Scanning Case
Google filed its brief on Friday contesting Judge Chin’s decision to certify the plaintiffs in the book scanning case as a class. Judge Chin at the time of certification denied Google’s request to stay the action and set the case for trial. The Second Circuit stayed proceedings in the case pending the outcome of the appeal.
Google essentially argues three points: 1) the class is divided over the benefits or harms to authors due to the scanning project; 2) Google is allowed to present the fair use defense and the application to the facts may vary with individual books; and 3) each class member’s right to recovery will vary depending on the proof of copyright and registration. Google relies on the Wal-Mart v. Dukes class action case decided by the Supreme Court in the last term, the Georgia State e-reserve case, and the HathiTrust case among others for its positions.
Google questioned the Authors Guild’s representation to the class by citing its own expert survey that showed 58% of author responders approved Google scanning their works. The Authors Guild has the burden of showing that its interests do not conflict with that of class members according to the filing. So far, that showing has not been made.
Other case law allows Google to mount the fair use defense in this action. Other cases, such as the Georgia State e-reserve case weighed fair use against the type of use made for individual volumes. Some of this measured the amount of use and the purpose for which it was used. I can imagine the Authors Guild arguing against this simply on the basis that Google is a for-profit entity where a public university is not. Google nonetheless has the right to assert that defense, especially in light of the HathiTrust case (and other precedent) where the District Court found the electronic index created as a result of scanning to be transformative and fair use.
This leads to the third argument that the class is potentially unrepresentative due to the amount of proof necessary to show a given book or author is even part of the case. Google offers that registration records would have to be produced on individual works and evidentiary hearings would be held to see if a book qualifies for a remedy under the case. The fact that different authors may have different interests in their works falls against class certification. I imagine the Authors Guild would argue against these points when its brief if filed.A copy of the brief with additional commentary and comments is available here at paidContent. [MG]