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Google Books Case Part 4,523: Decide Fair Use First

The endless lawsuit by the Authors Guild (which purports to represent authors, no longer including me), against Google moved another small step toward completion today.

The Guild is just sure that Google’s book scanning project means that end of civilization as we, or at least they, know it. Their arguments run from the somewhat plausible, that the scans are in violation of copyright, to the just plain goofy, that the scan data is so amazingly valuable yet vulnerable that Google must destroy it before someone steals it.*

The case purports to be a class action on behalf of (approximately) authors in the United States of copyrighted books and their heirs. They have a group of allegedly representative plaintiffs, all of whom are Guild members with agents who write books for money. Google argued that a class is inappropriate because book contracts are so varied that infringement issues are specific to each contract. They also argued that the representatives are not representative, butressed by a strongly worded letter from a long list of academics who publish primarily so that people can read what they’ve written and think that Google’s book scanning is just dandy. Google also argues that the class issue is moot because the project is fair use.

On June 12, Judge Chin certified the class anyway, saying that authors of copyrighted books have enough in common to be a class and the other details can be worked out later if they win. Google of course appealed.

Today, less than three weeks later, the Second Circuit ruled in a very short opinion [PDF] that the judge was taking the issues in the wrong order. They directed him to consider the fair use arguments first, and only if that doesn’t end the case, to proceed to the class issues. If the case does proceed, the Circuit gave a pretty strong hint of what will happen:

Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, ...

So now we will finally get to the most interesting part of the case, how the clear public benefits from the book scan balance with the copyright interests of authors. Stay tuned for part 4,524.

* You might think I was making that one up. If only.

By John Levine, Author, Consultant & Speaker

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