Google Book Scanning Class Action Likely To Disappear

It’s probably safe to say that Google’s entire business is built on the legal foundation of Fair Use. Fair Use is a copyright exception that allows certain parties to reproduce a copyrighted work without paying royalties to the owner. And, Fair Use may represent a complete defense for Google in its long-running court battle with the Authors Guild over its book scanning project.

In a major procedural defeat for the Authors Guild, the US Second Circuit of Appeals today voided the class action status of the litigation. The appellate court said that lower court Judge Denny Chin (himself now a member of the Second Circuit ) made a premature decision or mistake when he certified the class action prior to ruling on Google’s Fair Use defense.

A successful assertion of Fair Use would effectively end the litigation. It would represent a complete defense to the Authors Guild claims in all likelihood.

Google appealed the class certification ruling to the Second Circuit court of appeals and won in today’s ruling. I won’t go into the court’s discussion of class certification issues. The important part is that the Second Circuit directed Judge Chin to consider the merits of the Fair Use defense. If Google loses on Fair Use, the class certification issue can be revisited.

In considering Fair Use courts must weigh four factors (per 17 U.S.C.§ 106):

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Google has argued that its book database and the inclusion of authors’ works in the search index merely allows those works to be discovered and that it’s the modern equivalent of a “library card catalog.”

A similar case, in which the Authors Guild sued several universities that had engaged in mass book scanning (aided by Google), was decided against the Guild on Fair Use grounds. The facts here aren’t identical but close enough to suggest potential victory for Google using similar Fair Use arguments.

The case Authors Guild v. Google was initiated in 2005 and has been going on for roughly eight years now.

Authors Guild v Google by gesterling