This Kat has always been a
fan of endless stories.
Transferring this passion of
hers to the equally entertaining world of copyright, there is another saga that
this Kat has keenly followed for years, this being the Google Books Library Project & related
litigation.
In late 2012, this blog reported news that the Association of
American Publishers (AAP) and Google had concluded a settlement agreement to put an end to copyright infringement proceedings first brought
against Google in 2005 by five AAP member publishers (McGraw-Hill, Pearson
Education, Penguin Group USA, John Wiley & Sons, and Simon & Schuster).
Of course, this did
not affect the ongoing litigation between the Authors Guild and Google.
|
Judge Denny Chin |
As reported by the IPKat, last November Google submitted a brief to
the US Second Circuit Court of Appeals, in which it basically asked the Court
to reject Judge
Denny Chin's ruling in May 2012 that let the Authors
Guild sue Google on behalf of all authors whose books were scanned without
permission. At that time Judge Chin had certified a class consisting of:
"All persons residing in the
United States who hold a United States copyright interest in one or more Books
reproduced by Google as part of its Library Project, who are either (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 ..."
While certifying a class is in
principle a green light for a class action to go to trial, last August
the US Second Circuit Court of Appeals granted Google permission to appeal the
certification.
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Wrong certification, says the 2nd Circuit |
In its submission, Google argued that Judge Chin had
erred in certifying the plaintiffs' proposed class, noting that there might be a divergence
between the interests of individual authors and
their representative associations. In particular many members of the
class - perhaps even a majority - were said to benefit from Google Library
Project and, as a result, would disagree with plaintiffs' efforts.
Today the Second Circuit
delivered its decision, in which it substantially agreed with
Google's submission.
The argument of a divergence
of interests between authors and their representative associations was not
addressed at particular length, although the Court acknowledged that it "may carry some force".
What ultimately led to rejection of Judge Chin’s class certification was
consideration of Google’s longstanding argument that its Library Project enjoyed
a fair use defence.
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Which serves authors' interests best, Google or authors' associations ? |
The Second Circuit classed Judge Chin's class certification as "premature in the absence of a determination
by the District Court [ie Judge
Chin] of the merits of Google's 'fair use' defense".
Hence, the Second Circuit decided to remand the cause to the District Court for
consideration of the fair use issues.
“the judges on this appeal
were convinced that Google has a winning fair use defense across the board.
It’s not a fact-dependent defense, one that would work for some of the books
owned by class member but not for others. Rather, it’s a general defense, one
that would render class certification itself irrelevant, even 'moot the
litigation'.”
Since fair use issues were outside the scope of the appeal,
"the court decided to
gently signal what it thought about the fair use question and invite Judge Chin
to cut to the chase. It’s not the most juridically correct resolution of the
appeal, but it seems justifiable on pragmatic grounds."
This Kat agrees with this analysis, but what do
our readers think?
Besides fair use considerations, in the background there also remains
the classic Google Books/Hamlet dilemma: Which serves best the interest of authors, Google
or authors' associations?
Judge Chin is the man
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