Google Moves to Dismiss

Google gave me an early Christmas present today: a motion to dismiss the Authors Guild as a plaintiff from its case against Google, with plenty of interesting legal details to unwrap. The motion also seeks to have the American Society of Media Photographers and other visual artists’ groups dropped from their own suit against Google. If granted, the motion would leave behind only individual artists and authors in the two lawsuits against Google. We have the full motion and supporting materials at the Public Index; all of the legal argument is in the supporting brief.

The only that Google raises here is “associational standing.” Fair use, library rights, licenses, improper plaintiff class — none of these issues are on the table yet. They will be in due course, and the current motion gives some interesting hints at what Google may eventually argue. But for now, the only issue Google raises is whether the Authors Guild, the ASMP, and the other visual artists’ groups can take part in the lawsuit.

The reason why not is simple. Ordinarily, only the person who has allegedly been injured by the defendant’s actions has “standing” to sue. If I’m outraged at the putrid food you were served at Burger Lord, I can’t just rush off to court to sue Burger Lord. It’s your call whether to sue them, not mine, and if you do, you need to direct the lawsuit yourself. My outrage doesn’t give me standing; your food poisoning does.

In a copyright case, standing comes from ownership. Only the “legal or beneficial owner” of the exclusive right the defendant has allegedly infringed has standing to sue. Since the Authors Guild doesn’t own the copyrights in its members’ books, it can’t sue in its own behalf.

There is an exception. It’s the one the Sierra Club uses to sue to block environmentally harmful development, or that [insert favorite membership organization here] uses to sue over [insert legal issue affecting group’s members here]. Membership organizations can assert “associational” standing if their members would have standing to sue.

But this is a limited exception, and that’s what Google’s motion is about. Google’s argument, in a nutshell, is that the legal issues this case will confront will require too much individualized proof for associational standing to work. As Google sees it, deciding whether its scanning and indexing infringes on each author’s book will require deciding (a) whether that author really owns the relevant rights, and (b) whether Google has a fair use defense specific to that book. Both of these inquiries, Google alleges, are so fact-dependent that they will “require[] the participation of individual members in the lawsuit,” thereby making associational standing impermissible.

Google’s arguments on both of these points are interesting. When it comes to ownership, Google’s brief effectively asserts that the e-rights situation for books is a tarpit in a bog under a swamp shrouded in fog. You want to sue us as an association, it asks? Fine. Just sort out who owns e-rights throughout the publishing industry first. Get back to us when you’re done. (In one especially clever bit of lawyering, Google quotes guides published by the Authors Guild and the ASMP to make its point that book licensing is complicated and messy.)

As for fair use, it helps to think of this motion as a trailer for Google’s opposition to class certification, coming to a courthouse near you in January. Google argues that the “individualized analysis” required by fair use will vary extensively from book to book and artwork to artwork. Some books are creative; some are more informational. Some are in print; some are out of print. Expect to see a more detailed version of this argument rolled out in January, when Google argues that the class of plaintiff authors is simply too diverse to litigate as a group.

What happens next? The Authors Guild and visual artists will file their responses to Google’s motion by January 23, and Google will reply in early February. In the meantime, Google will file its own response to the class certification motion by January 26, with the plaintiffs’ replies in March. The timing is interleaved, and so are some of the factual and legal issues, so I wouldn’t be surprised by a single opinion addressing both sets of motions.

Happy holidays to everyone out there in Google Books land; this has certainly been an interesting year we’ve enjoyed together. I look forward to continuing these conversations with you all in 2012.

Doesn’t the argument that fair use (and other rights) have to be determined on a case-by-case basis speak directly against Google’s plans for mass digitization?

(from the supporting brief)”The associations cannot meet the associational standing test because litigating a copyright infringement claim requires the participation of the copyright holder—in every copyright case as to copyright ownership, and particularly in these cases as to fair use.”

As I recall, in their initial publicity they claimed a blanket fair use right for copying for the purpose of indexing. There was no mention of looking at the works individually.

This is a good moment to say: thank you, James, for the invaluable commentary you have provided throughout this thorny case. Happy holidays to you too!

My nomination for the best sentence from the last 6 years of this:

“When it comes to ownership, Google brief effectively asserts that the e-rights situation for books is a tarpit in a bog under a swamp shrouded in fog.”


Thank you James and all have a good holiday. And enjoy a good book!


It might be that there’s a range of uses that are categorically fair uses of every work, then a range of uses that depend on individual characteristics of the work, and then a range of uses that are categorically not fair uses of any work. To the extent that Google is now saying that this lawsuit involves uses in the middle category, yes, it does make it harder for Google to argue that the scanning is a fair use across the board. But Google could also be arguing that it thinks the scanning is always a fair use, but if it’s wrong, then we’re in the middle work-by-work category, and associational standing isn’t warranted.

I’m not a lawyer, but/and I’m not getting this. Google thought the Author’s Guild was sufficiently representative to try to bind millions of copyright holders who are not members into two versions of a proposed settlement on an opt-out basis. So why, after several years of litigation, is Google now saying the AG is not representative?

I also think Karen has made an excellent point.

Speaking of excellent points, Frances makes one: Google just spent four years negotiating with the AG for a broad set of rights affecting all US authors, and now it says they aren’t representative. I realize that they are trying to get the case dismissed at this point, but this is blatantly self-serving. I suppose they are beyond caring about the PR aspects of the case and just want it to be over. It’s hard to blame them for that, but it still looks bad.

On the other hand, a decision in Google’s favor here could aid HathiTrust, who is being sued by the same body claiming similar or same representation.

Karen “blatantly self serving” second that.

Merry Christmas and a better New year.