In addition to associational standing, the other main issue currently in play in the principal Google Books case is class certification. After discussions about a new settlement fell apart, the Authors Guild moved to certify a class:

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. “Books” means each full-length book published in the English language and registered with the United States Copyright Office within three months after its first publication.

Google filed its opposition to certification in early February, and it was followed shortly by a letter by the indefatigable Pamela Samuelson on behalf of eighty-two academic authors (and members of the potential class) also objecting to certification. Strikingly, the signers include both vocal opponents and vocal supporters of the now-rejected settlement. They’ve made common cause again.

While the lawsuit could in theory go forward even without the class, it would be far less viable in practice. The prospect of a huge financial recovery both gives the Authors Guild more leverage against Google and makes its lawyers more willing to work on a contingency basis. So fighting class certification is a no-lose proposition for Google: in the best case, the case goes away, and in the worst, it would still have to litigate the fair use issue anyway.

Google did one supremely clever thing: it spent $100,000 to hire an expert, Hal Poret, to survey authors and ask them what they think about Google Books and its effects on their sales:

The survey shows that fifty-eight percent of authors affirmatively approve of the inclusion of their books in snippet view; fourteen percent affirmatively oppose that inclusion; and twenty-eight percent neither approve nor disapprove. Id. at 14. Forty-five percent believe inclusion in snippet view helps sales of their books; four percent believe it harms those sales; and fifty-one percent believe it has no effect one way or the other. Id. Nineteen percent believe inclusion in snippet view advances their economic interests more generally; eight percent believe it harms those interests; and seventy-four percent believe it has no effect one way or the other. Id.

These findings raise, once again, the question of who speaks for authors. The Authors Guild wants to certify a class to prevent Google from indexing and snippeting authors’ books in general. But if over half of authors approve of snipping and almost half think it increases their sales, the Author’s Guild’s proposed litigation strategy starts to seem openly antagonistic to the interests of many class members. And to defeat class certification, it doesn’t need to show that the proposed representatives are completely different from all other class members, just that there is a “fundamental conflict” between some class members and others.

Complicating matters, both sides can argue that their proposed outcome doesn’t restrict the options of authors who disagree. The Authors Guild can quite rightly (and likely will) point out that authors who like having their books indexed can individually give Google permission to do so. Google can reply (and has on many occasions) that it lets authors opt out: it honors requests to have books removed from its index and snippet view. Thus, the issue comes down to the power of defaults: which authors need to fill out a web form, the ones who want to be indexed or the ones who don’t?

It’s here, I think, that the Samuelson letter makes its most telling points. As academics, the signers are regular users of Google Books: they find it valuable in their roles as authors. The Authors Guild and two of the three individual plaintiffs were already held to be inadequate class representatives for academics in Judge Chin’s opinion rejecting the settlement. And the academic authors have specific objections to the Authors Guild’s litigation strategy, such as its attempt to seek statutory damages. All of these go to the idea that a large group of authors would be specifically disadvantaged if the Authors Guild had its way and imposed a default of “no scanning.”

Google also reasserts at length two of the issues it raised when arguing that the Authors Guild lacks associational standing: diversity of ownership and diversity of fair use. Google argues that individual issues “predominate” over classwide ones in determining who’s a copyright owner with standing to sue for infringement. That, Google says, depends on the circumstances of a book’s creation and on the details of its publishing contracts, and spends several pages detailing the wide diversity of contracts in use in the publishing industry. (The Authors Guild supplied Google in discovery with an assortment of representative contracts, which Google uses to build its case.)

I’m not so sure about the argument from diversity of ownership. The irony here is rich but leaves a bitter taste in the mouth: the proposed settlement would have rewritten publishing contracts on a wholesale basis, but now those contracts are so diverse that they preclude class certification? And, more fundamentally, as the Supreme Court put it in Wal-Mart v. Dukes, quoting the late great Richard Nagareda:

What matters to class certification … is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.

Here, individual ownership is only really a problem at the relief stage, in determining who is entitled to a damage award or the benefit of an injunction. But for purposes of a lawsuit that tests the legality of Google Books, ownership of any specific book is largely irrelevant. That case can be litigated for whichever authors are members of the class without first needed to create an exhaustive list of them. That litigation will generate “common answers” about the legality of scanning, indexing, and snippetizing books.

Google’s second familiar argument is that fair use is inherently a case-by-case matter, which here means book-by-book. Some of the books are in print and some aren’t; snippets are proportionally much more of a shorter book than a longer one; some books are more factual and others are more creative; the economic effects will vary from book to book. These all strike me as matters of degree. Some practices—quoting a sentence as part of a review—are fair use on a class-wide basis. Some—printing complete copies for resale—are unfair on a class-wide basis. In between there will be at least some practices that are fair as to some books and unfair as to others.

In other words, the answer to “Can fair use be determined in a class action?” isn’t “yes” or “no,” but “tell me more.” It depends on what the fair use issues are. While in theory class certification motions are supposed to be about the class rather than about the merits of the case, some mixing is inevitable, as Wal-Mart recognizes. Given that I think Google is right about fair use, I also think that Google is wrong on class certification. The fairness of indexing can be determined in a class action, and the answer is yes, it’s fair use. If you disagree with me strongly enough, then you also think that diversity of fair use is no barrier to class certification. It’s only if you think that the fair use issues in this case are so close to evenly balanced that the court will need to proceed book-by-book that you ought to be opposed to certification on that ground.

I look forward to seeing the plaintiffs’ reply, which is due by April 3, and will blog about it when it comes in.