GBS: Oral Argument Recap

Today, Judge Chin heard oral argument in the Google Books case. I couldn’t attend, due to a prior commitment, but three of my students were there. David Berson NYLS ‘12, Kristoff Grospe NYLS ‘12, and Raphael Majma NYLS ‘11 took detailed notes, and this post is based on their careful reporting.

There were two issues at the hearing today:

  1. Whether the Authors Guild and visual artists’ groups have “associational standing” to sue Google on their members’ behalf.
  2. Whether to certify a class of authors so that the Authors Guild’s lawsuit can proceed as a class action.

(One of the things Judge Chin established at the hearing was that if he grants class certification, then the associational standing of the Authors Guild becomes unimportant to the litigation. The reverse isn’t true: if the 8000-member Authors Guild is a proper associational plaintiff, certification of a much larger class is still a live issue.)

Argument started with the associational standing motion. Google’s lawyer, Daralyn Durie, argued that each author will present sufficiently different issues that their individual participation will be required. Those individual issues come in two flavors: it might be hard to prove that particular authors are “legal or beneficial owners” who are entitled to bring suit in the first place, and Google’s fair use defense might apply differently to different authors. Judge Chin pressed Durie on both theories.

As to the ownership theory, Google claims that there’s enormous diversity in publishing contracts in terms of the language they use. Since many authors don’t receive royalties directly attributable to the display of short excerpts by publishers, they’re not “beneficial” owners of the short-excerpt-display-right. The Authors Guild’s lawyer, Joanne Zack, on the other hand, argued that royalties are a typical feature of publishing contracts making the authors beneficial owners entitled to sue. She had a good backup argument: the Copyright Act makes copyright registrations prima facie evidence of ownership, so that any burden of proof would be on Google to rebut the presumption that a particular author retains her standing to sue.

Judge Chin, in his questions to Durie, cut straight through to another possibility: that proof of ownership could be deferred to the remedy stage of the lawsuit. That is, the Authors Guild could litigate on behalf of whichever of its members are copyright owners with standing to sue, whoever they are. If it wins, at that point the individual contracts could come into evidence in deciding which of them are entitled to damages or an injunction. It was a pragmatic argument, and Durie’s reply was more formalist: the Copyright Act requires that the plaintiffs be copyright owners in order for the court to decide the issue of infringement at all.

Chin also asked Durie whether Google really wanted to be litigating millions of ownership questions individually. Durie offered a reply that lawyers are likely to find elegant and non-lawyers frustrating. Federal civil procedure already has a good device for handling multiple cases with similar legal issues: collateral estoppel. If Google loses against the three named plaintiffs on a genuinely shared issue, then other authors will be able to come into court and take advantage of the ruling. Google will be “estopped” from raising the issue again in those “collateral” lawsuits brought by other authors.

As for the diversity of possible fair use evaluations, the parties dueled over evidence. Google has a survey showing that some authors perceive a benefit from being included in Google Book Search (thereby showing divisions among authors). Durie needled the Authors Guild for not having its own survey, indeed for not even canvassing its own members. The Authors Guild, on the other hand, has a pair of expert reports that it claims help establish common economic harm to authors; Durie hinted at a few reasons that the reports should be excluded from consideration until later in the case, when Google will have had more of a chance to depose the experts and prepare a reply. (Personally, I think the reports are so tangential to the issues of common harm that it makes little difference; they’ll be relevant only if and when the case reaches the fair use merits.) Judge Chin, with what I can only imagine was a poker face, said he would look at both the survey and the expert reports and ask for additional submissions if he had doubts or questions.

Chin also pressed a theme that the Authors Guild has emphasized in its discussions of the case: Google scanned books en masse, so why should it suddenly insist that individualized treatment is necessary? Durie emphasized that Google doesn’t treat all books identically: dictionaries, for example, are excluded from snippet display. But, Judge Chin asked, surely there are only a finite number of different classes: poetry, cookbooks, fiction, how many could there be? And here Durie conceded that yes, Google makes its decisions on a “categorical” basis by type of work.

James McGuire, on behalf of the visual artists, added a few points specifically on their behalf. The cleverest was that it wasn’t just twenty million books that Google has scanned, but twenty million covers. There, since the fair use arguments don’t revolve around snippets, but rather entire covers, presumably there will be much less individual variation. On the whole, though, he was content to rest on the artists’ brief, which, let it be said, is both well-drafted and in Garamond.

Turning to class certification, the parties had relatively less to say, in substantial part because so many of their points had already been aired. Judge Chin rushed Zack through her argument: his only real question was to prompt her for a response to Google’s argument that fair use determinations for snippet display are inherently individualized. Her response was that Google, in its actual fair use defense on the merits, won’t actually be raising individualized issues.

Zack used some of Google’s answers to interrogatories (formal questions directed to the other side in a lawsuit that require it to state clearly the legal theories it will be using and the factual bases behind them) to claim that none of its actual fair use defense will be genuinely individualized. Unfortunately, since those documents aren’t yet part of the public court record, I can’t share them here or comment on what they say. Still, I previous called Google’s arguments here “small beer” and it seems like Google hasn’t really found a way to distinguish some authors from others in ways that really require individualized fair use assessments.

Durie dwelt less on the commonality of Google’s conduct than on the differences in authors’ circumstances. Some authors will benefit from being in Google Book Search; others won’t. Judge Chin again raised the subsets-of-authors argument: can’t we just divide authors up into, say, eight or nine groups (in-print fiction, out-of-print academic monographs, etc.) and deal with those groups separately? Durie, pointing to the survey, argued that analyzing the effect of Google Books on book sales really does require examining the effect on each author individually because their circumstances vary widely.

There was an argument notable by its absence. The academic authors sharply objected to the Authors Guild as a representative of their interests. But Durie didn’t pick up on their argument at all. She cited the academics for the benefits they receive from Google Book Search (viz. dissemination of their ideas and assistance in research), but not at all for their complaints about the non-academic bent of the Authors Guild and the named plaintiffs. Similarly, while Google could in theory have raised some of C.E. Petit’s points (esp. 3, 4, and 6) against certification, it didn’t.

A few further points got some airtime; it’s unclear how receptive Judge Chin was to either of them. Zack tried to argue that the objection to standing was untimely, coming as it does six years into the lawsuit. (Of course, the parties were rather busy being bestest friends for the majority of that time …) And Durie signaled that Google will be trying to object to the Authors Guild’s theory that it “distributed” the scans to libraries, because it hasn’t distributed any material objects to them. (Caselaw is generally against this argument, but not so squarely that it’s clearly foreclosed.)

At the end of the hearing, Judge Chin surprised no one by reserving decision. The parties will go ahead with their summary judgment motions, with oral argument coming in September. (Reminder: the Public Index now has a timeline of upcoming dates in the cases.)

A few general observations. First, Judge Chin’s questions were thoughtful. He wasn’t trying to press the parties on their weak spots; his questions were clearly directed to clarifying where the key areas of dispute were. Second, at least from the perspective of someone who wasn’t in the courtroom, the case was well-argued on both sides. Zack and McGuire seem to have a slightly easier case on these motions, and they extracted some concessions from Durie with Judge Chin’s help. But for her own part, she made some good points: the subtle but well-argued kind that one would expect from a real pro.

Third, the parties danced a bit around one of the key questions: what, precisely, is the allegedly infringing conduct for which the Authors Guild seeks to hold Google liable. Durie suggested at one point that the “right” at issue is the right to display a small excerpt of a book. Zack didn’t reply directly, but in other briefs and arguments, the Authors Guild has framed the case as being about the mass scanning, the distribution of copies to libraries, and the security risks of holding a complete corpus. This is presumably going to be sorted out sooner or later, quite possibly by Judge Chin himself.

It’s hard to predict what will happen next. My uninformed read is that today was a tactical victory for the plaintiffs: Google didn’t offer a compelling argument for why the case can’t proceed as a collective lawsuit. But that may not be strategically significant: the case is clearly heading towards the real battle over fair use, and I didn’t get the sense that the Authors Guild significantly improved its position in terms of selling Judge Chin on its claim that scanning and indexing is unfair. That may just indicate that Judge Chin, quite properly, is focused on the procedural motions currently in front of him. Or it could be a sign that the Authors Guild doesn’t have enough arrows in its quiver to hit the no-fair-use target.

Stay tuned …