GBS: To Certify a Class

The briefing is complete on the plaintiffs’ motion to certify a class of authors. The most important documents are Google’s opposition brief and the plaintiffs reply brief in support of the motion, plus the letter of academics in opposition coordinated by Pamela Samuelson. Maybe it’s just in comparison to the earth-shaking groundbreaking settlement, but I felt that the arguments for and against class certification were a little anticlimactic. (See also my earlier discussion of class certification.)

Simplifying slightly, Google raised three kinds of objections.

Unrepresentative Plaintiffs: Google’s first argument is that the named class representatives—Joseph Goulden, Jim Bouton, and Betty Miles—aren’t adequate representatives for the class of authors whose books Google has scanned. Google backed up this argument in a surprising, and fairly clever way: it commissioned a $100,000 survey of authors to see what they thought about Google Books. Starting from a list of 142,000 published authors in the United States, a survey firm tried to reach about 10,000 authors by phone and another 5,000 by email, and ultimately was able to get 880 responses. Some key findings:

  • 58% of authors surveyed approve of Google’s scanning; 14% object to it.
  • 74% of authors surveyed think there’s no financial impact from scanning and snippet display; 19% think it hurts authors, and 8% think it benefits them.
  • 45% of authors think Google Books improves demand for their books; 4% think it harms demand.

Google, unsurprisingly, argues that these numbers show that the majority or vast majority of authors approve of Google Books, and wouldn’t approve of a lawsuit to stop the scanning. Since the representative plaintiffs are bringing just such a lawsuit, Google says, this is a “fundamental conflict” preventing them from being adequate representatives.

The plaintiffs, unsurprisingly, dispute everything Google says about the survey. They argue that the survey itself is flawed, because it asked leading and incomplete questions, and because of its low response rate. They also argue that the survey—no matter what it found—is irrelevant, because it didn’t ask respondents what they would want to happen if the lawsuit succeeds. (This last argument strikes me as casuistry, given that the survey asked whether they “approve of” or “object to” Google’s scanning—but it is noteworthy that the survey never asked about attitudes towards the lawsuit.)

This gets at a deep, fundamental question about the nature of class actions. What should a court do when some class members like the defendant’s conduct and others don’t? The authors here have a ready answer: allow the lawsuit to go forward as a class action, because any class members who approve of Google’s actions can opt out. But that just kicks the question up a level of abstraction. Should authors have to opt out of Google Books, or should they have to opt out of the class action? Neither default is entirely satisfying.

Alongside this general argument—“A representative cross-section of authors like Google Books”—there is also the argument that academic authors in particular like Google Books, both as authors and as readers. Given that Judge Chin’s opinion held that the plaintiffs there had not adequately represented the interests of academic authors, I was surprised that Google didn’t make more of this point. Samuelson’s letter, on the other hand, hammers it powerfully, emphasizing that they disagree with the decision to bring the lawsuit, with the legal theory on which the lawsuit is based, and with the relief the author plaintiffs request as a result of the lawsuit.

The author plaintiffs, in reply, argue that there is no dichotomy between academic and other authors, that they can always opt out, and that they’re making the argument as users of the search engine, rather than “from the position of class members whose copyright interests are undeniably affected int he same way as the named plaintiffs.” There follows a paragraph that manages to be both nonresponsive and patronizing:

Further, the late husband of plaintiff Betty Miles was a Columbia University professor, and her copyright interests include those in his textbooks. She testified that “he was an academic author” who “wrote textbooks,” and that she is an adequate class representative for all authors, because, “I know a great many academics, as I know a great many plain authors and I know that no matter what kind of book they are writing, they are all concerned about their copyright and the rights of holders of copyright to control their books.” Miles Dep. at 93-94. See also Bouton Dep. at 80-81 (“Whether it is a gardening book or a history book or academic textbook or a baseball book, we are all protected by copyrights.”); Goulden Dep. at 59 (as a non-fiction writer, Mr. Goulden, like academics, must do “in-depth research” for his books).

Where to start? First, there’s Miles’s reference to “academic” and “plain” authors, as though there were something unusual about academics. Then there’s her unwarranted assertion that all authors are “concerned about their copyright and the rights of holders of copyright to control their books,” a claim that doesn’t accurately represent how scholars concerned with the cumulative development of knowledge think about copyright. Bouton’s statement is a legal conclusion, not an actual statement of shared interests. And Goulden’s point is true enough but has nothing to say to the Samuelson letter’s point that “the main reward we wish to attain from our intellectual labors is the satisfaction of contributing to the ongoing dialogue about issues of concern to us.”

In short, I think the paragraph would have been better off omitted from the brief. I’m surprised that not one of the six lawyers on the brief noticed how hollow it rings. It demonstrates, in a remarkably short space, precisely the point it tries to disprove: that the named plaintiffs don’t understand academic values or share academics’ goals.

Copyright Ownership

Google’s second major argument is that a class action is inappropriate because there will be too many individual issues regarding ownership of the copyrights. Here, Google goes into some detail to set out the wide range of publishing contracts and the different kinds of terms they contain. Some publishing contracts transfer promotional rights (which is how Google characterizes snippet display); others don’t. Some books are works made for hire by authors who never hold a copyright interest; others aren’t. Some books are registered promptly; some aren’t. All of these issues, and more, which Google calls “a fact-intensive, individualized inquiry that must be undertaken on a book-by-book basis,” bear on whether a given author has a viable claim against Google.

The plaintiffs reply, and I think quite convincingly, that very few of these complexities will actually beset the lawsuit. There’s no serious question that many authors are copyright owners with standing to sue. As the brief explains:

It is completely unnecessary to determine who had the responsibility to register a copyright, whether legal title to an exclusive right has or has not yet “reverted” from a publisher to an author, and whether or not a book is in-print. Whether a book is in-print or out-of-print, reverted or not, an author with royalty rights (like all the authors in the contracts Google attached to its papers) is a beneficial owner entitled to sue an infringer like Google, who had no license to use any of the books it reproduced, distributed and displayed.

This strikes me as right, as do the pages of detailed argument that follow. It will be “administratively feasible” to make an initial determination of which authors are class members on the basis of relatively simple copyright registration records. A great many class actions require some level of self-certification on the part of class members who submit claims, e.g. “I bought a Roto-Widget before August 25, 2008 and paid at least $25 for repairs within the Warranty Period.” Sometimes documentation is required; sometimes it isn’t. These bureaucratic niceties of sorting out membership don’t derail the fundamental suitability of the Roto-Widget product defect litigation for class-action treatment. So here. Ownership is not a contested legal issue that divides class members against one another or will force a million sub-trials; it is a threshold question that affects which authors are entitled to join in the victory lap if the plaintiffs win.

Fair Use

Google previews its forthcoming fair use arguments by arguing that fair use will require individualized treatment. What kinds of differences will be implicated? Google gives a few examples:

  • Fiction, non-fiction, and other kinds of books will have stronger and weaker claims to fair use in the second factor: the nature of the copyrighted work.
  • The fair use case for in-print and out-of-print books looks very different; even classifying a book as one or the other will be hard. (Strangely, it wasn’t so hard when it was one of the tasks required by the proposed settlement…)
  • A snippet is a large fraction of a short book than of a long book.
  • Snippets from informational books may contain no copyrightable expression at all.
  • The effect on the market for particular books will depend on evidence about those particular books’ sales and licensing. Here, the survey makes a return appearance: as evidence that the perceived economic effects vary by author.

These arguments increasingly strike me as small beer. Some are just silly: snippets are short enough that the difference between a snippet of a 428-page book and a snippet of a 32-page book will not make much of a difference. And others, while serious, can be addressed with a relatively small number of subheadings in a potential opinion. Slicing the world up into in-print and out-of-print books might even be sufficient on its own for a fair use ruling. There are enough cases out there with broad fair use holdings (both for and against) that there doesn’t seem to be an insuperable judicial obstacle to considering Google’s uses against a wide array of books all at once.

The plaintiffs’ reply here is … interesting. The five pages in which they discuss fair use and common questions are partly an argument that these supposedly fact-specific questions can indeed be resolved on a class-wide basis. But much of the discussion is taken up with arguments on the merits: that what Google is doing is categorically, across the board, unfair. “There are no true individual questions here,” seems to be the message, “because the case against Google is so overwhelming in each and every individual case.”

The plaintiffs do have a powerful point about the uniformity of Google’s practices: it scans books en masse, makes a single index, runs a unified search engine, and ships copies back to libraries en masse. It would be perverse indeed if the legal system lacked a mechanism for generating “common answers” as to the legality of those practices. Class actions aren’t the only possible such mechanism, but they’re certainly a plausible-sounding one.

Still, I wonder about the tendentiousness of arguing the fair use question in the class certification motion. I understand the desire to get in first before a judge in framing the forthcoming arguments. But Judge Chin already has thought about fair use issues in this case; indeed, his earlier opinion touches on them briefly. And putting the argument in the class certification brief gives Google a nice preview of what lies ahead.

Case in point: the experts. The author plaintiffs’ filings include expert reports from two professors: Harvard’s Ben Edelman and Vanderbilt’s Daniel Gervais. Edelman opines that the threat of security risks from scanning projects reduces the market value of books; Gervais opines that if the court rules for the plaintiffs, the market or Congress will develop a collective licensing solution. Neither of these issues bears significantly on the class-certification issue. And yet the plaintiffs filed their expert reports now, well in advance of the deadline. Perhaps there’s a reason why this tactical advantage was already gone, but this seems like an example of firing well before the whites of Google’s eyes were visible.

The expert reports are a little strange in other respects, too. Edelman doesn’t claim that Google’s or libraries’ systems for books are actually insecure. Nor does he claim that a possible security breach would, if it happened, reduce the market value of books. Instead, he reaches a much stronger conclusion: if Google wins, “the market for books will be adversely impacted by the potential for security breaches.” Given that his report starts by describing current, actual widespread unauthorized distribution of digital books, one wonders how much difference the fear of hypothetical security breaches would make.

Overall Thoughts

Having seen the full briefing now, I’m more sympathetic to the class certification motion than I expected to be. Neither the ownership nor fair use issues strike me as presenting the kind of difficulties that would preclude class treatment. The only serious issue—and it remains a very serious one—is whether the named plaintiffs can truly represent this class. The survey evidence that authors have mixed feelings about Google Books is interesting; I’m still digging through caselaw to try to understand how relevant (or irrelevant) it is. And the academic authors’ letter makes a strong, sharp point, one not effectively answered by the plaintiffs.

I hope to post soon about the new scheduling order, previewing the next few months in this and the other Google Books cases.

Where to start? First, there’s Miles’s reference to “academic” and “plain” authors, as though there were something unusual about academics.

To be fair to Betty Miles, James, the distinction between academic authors and the ‘named plaintiffs’ and members of the Authors Guild was made in the first place by Pamela Samuelson and the signatories to her letter and then picked up in Google’s brief in opposition.

And you suggest yourself in the post above that ‘scholars concerned with the cumulative development of knowledge’ have a distinctive way of ‘think[ing] about copyright’.

I am quite keen on the ‘cumulative development of knowledge’ myself, as it happens, but I think it will be a sad day when the only people who can afford to engage in scholarship are salaried academics. Under the traditional publishing system, securely underpinned by copyright, publishers’ advances have paid the research expenses of many a freelance scholar. And with all respect to the learned institutions, I think it is vital that voices should be heard from outside them.

Most nonfiction authors, myself included, are very interested in adding to the cultural body of knowledge and/or in providing useful information. That does not mean we don’t need money to keep on writing books. For that matter, I have often heard it argued that fiction authors are different, because they are assumed to be having so much fun they don’t need to get paid. That’s not true either.

It seems that on the evidence of years of actual ‘behavior’ Google really does not want to face up to a ruling on fair and unfair use, no?