The two lawsuits currently going on that involve the scanning of books for the Google Books project, one against Google directly and the other against the HathiTrust, raise very similar issues. In both cases, the two major issues are fair use and the posture of the plaintiffs who are bringing the cases in the first place. The Authors Guild is now the major plaintiff in both cases; they are the only plaintiff left in the case against Google because the Association of American Publishers settled out of it, and the AG brought the case against HathiTrust by itself in the first place.
Yesterday the Second Circuit Court of Appeals issued a ruling in the Google Books case that takes an important approach to the issue of how fair use and the “standing” question (who can bring a lawsuit and in what position they stand) are related, and it reminds us of the parallel tracks along which the two cases seem to be moving.
As many will recall, the Google Books case has been going on for a very long time. There was a complicated settlement agreement proposed back in 2009, but it was ultimately rejected by Judge Denny Chin. Since then the AAP has gotten out of the lawsuit, and it has gone to trial with only the Authors Guild as the lead plaintiff against Google, asserting copyright infringement. Early in that trial, Judge Chin (who is continuing to act as the trial court judge for this case even though he has since himself been appointed to the Second Circuit Appeals Court) “certified a class” for the purposes of allowing the case to be a class action lawsuit. Because it was not at all clear that the plaintiffs in the case really do represent all authors, or even a majority of authors, Google appealed this class certification
In its July 1 decision, the Court of Appeals held that their colleague was “premature” in certifying the class. They said that the trial court should consider the fair use issue that defendant Google had raised prior to determining class action status. There are news reports from Reuters and the NY Times on this stage of the case.
What makes this so important is that class action certification can really be the end of a case for practical purposes. The process of litigating a class action is so complex and expensive that class action certification is often a signal to the defendant to settle the case. The result is that, if a class is certified, there is much less chance that a full determination about fair use will ever be made. In this case, the fair use argument is very strong, and virtually identical issues were decided in favor of fair use at the trial level of the HathiTrust case. So it would be very unfortunate if the Google case never got to that stage. By fighting off the class certification, Google has won for itself a better opportunity to make that argument. And the precedent set by this decision is important, since it tells trial courts to consider fair use before they make the potentially destructive decision about class certification. In many cases, and the Second Circuit suggests that this may be one of them, the complexity and cost of a class action might be entirely avoided because fair use would lead to a lawsuit being dismissed before it got that far.
One interesting note is that Judge Pierre Leval was part of the Appeals Court panel that made this ruling. Judge Leval wrote the famous law review article called “Towards a Fair Use Standard” that is the foundation of the recent stress on transformative uses in the fair use context. Now, as part of this three judge panel, he has sent back to the trial court a case where the fair use standard he suggested is very, very applicable. So we will see if Judge Chin takes the strong hint that he has been given by his Second Circuit colleagues (including Judge Leval and the rest of the appellate panel, as well as Judge Harold Baer, who ruled in favor of fair use in the HathiTrust case) and finally dismisses this case on fair use grounds without letting it grow into a class action.
As I said, the issue of whether or not the Authors Guild can really adequately represent the class of all authors is also very important. Their membership is quite small – apparently less than 10,000 people – compared to all of the authors in the United States, and the interests they represent are even narrower. They seem to focus on the need to protect every copyright for ongoing and exclusively commercial exploitation, in blissful ignorance that many, probably most, authors do not make any significant income from writing and often feel that exposure and impact are far more important incentives for authorship.
It is on this point that yesterday’s decision so clearly shows us that the Google Books and the HathiTrust lawsuits are on parallel tracks. Late last year the trial court in the HathiTrust case made two important rulings. The first was that the activities of the HathiTrust that had been challenged were fair use. The second was that the Authors Guild could not assert “associational standing” to bring the case. Now the Appeals Court has sent the Google Books case back to the trial court for consideration of the fair use issue and reconsideration of the association’s standing (in this instance, whether it is an adequate class representative). On this second point the panel said that it did not have to decide the issue of adequate representation because a fair use decision might well moot the class action issue, but it indicated that the argument that the AG was not inadequate as a class representative “may carry some force.” Now we might see a situation in which the Google case is resolved the same way the HathiTrust lower court case was – the activity is fair use and the Authors Guild is not a proper party.
It would be nice if the Authors Guild took this ruling as an opportunity to back out of the case. But they have already appealed the HathiTrust verdict, and there is little reason to suppose that the AG will suddenly be seized by a fit of good sense. So we must watch these lawsuits, brought out of a misplaced desire to force copyright to be something it is not and never was intended to be, get decided step-by-step in favor of fair use. This latest decision, which will compel courts to consider fair use at an earlier, and potentially less devastating, point in a putative class action is, as they say, “another brick in the wall.”