Google Books Class Certified

Today, Judge Chin handed the Authors Guild a big procedural win. He issued an opinion that allowed the Guild to represent its members in the lawsuit, and then went on to certify a class consisting not just of the members but of all authors whose books Google scanned. He also allowed the American Society of Media Photographers to represent its members in the parallel visual artists’ lawsuit, along with the other artists’ groups who’ve joined together in that suit. This doesn’t resolve the merits of the lawsuit itself, but it does doom Google’s hopes of keeping the lawsuit from ever getting to the merits.

As usual, Chin’s opinion is brisk and readable. It is also eminently pragmatic. Chin recognized that to pass on the legality of Google’s scanning programs requires some kind of collective process. While he rejected the settlement last year, this time around he concluded that aggregate litigation is suitable for resolving the fair use questions at the heart of the dispute.

The opinion starts with associational standing. Ordinarily, only I can sue to vindicate my legal rights. Even if you think some grievous wrong has been done to me, it’s my lawsuit to bring (or not), not yours. You don’t have “standing.” But there’s an exception for associations, which can sue to vindicate the rights of their members, under limited circumstances. The opinion explores those circumstances, with application to the Authors Guild and other associations.

The key question at issue here was whether “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit,” which focuses on “matters of administrative convenience and efficiency.” The associations simplified things by asking only for injunctive relief against future copying, rather than damages. Google simplified things by scanning lots of books without permission. (Here, as in many other places, Judge Chin characterizes Google’s conduct in ways that have to have its lawyers worrying: he emphasizes the lack of permission and the mass nature of its scanning and displays.)

Copyright ownership, Judge Chin concludes, will not require significant individualized proof. Google objected that the actual details will be highly complicated, given the diversity of contracts in the industry. But Judge Chin has a good comeback. Copyright registration records provide prima facie proof of ownership. In a footnote, he turns Google’s argument neatly back on Google: “To the extent Google wishes to rebut such evidence, it may seek to do so on a case-by-case basis.” Ouch.

There follows a beautifully pragmatic point. Yes, some authors will have assigned away their complete copyright interests, retaining no royalty rights, and therefore will not be “beneficial owners” with standing to sue. But it will be much easier to ask authors to produce their contracts to show that their books are included in the class than to force them to sue Google individually. This portion of the opinion offers Google its best news of the day, I think: the company could throw some serious sand into the class action gears by making thousands or millions of authors pull their contracts out of the closet.

Google also tried to argue that fair use is inherently an individualized, case-by-case determination. Judge Chin wasn’t buying. Again, his opinion is straightforward and pragmatic:

While different classes of works may require different treatment for the purposes of “fair use,” the fair-use analysis does not require individual participation of association members. The differences that Google highlights may be accommodated by grouping association members and their respective works into subgroups. For example, in the Authors Guild action, the Court could create subgroups for fiction, non-fiction, poetry, and cookbooks. In the ASMP action, it could separate photographs from illustrations. The Court could effectively assess the merits of the fair-use defense with respect to each of these categories without conducting an evaluation of each individual work. In light of the commonalities among large groups of works, individualized analysis would be unnecessarily burdensome and duplicative.

Makes sense to me. All of us who have been opining about the scanning project for years have reasons for our beliefs, even though we haven’t examined each book in the project individually. Judge Chin will now do the same, more officially. In this, he joins Judge Evans, of the Georgia State case, whose opinion also is willing to generalize across classes of books in the interest of producing workable rules.

As a coda to the associational standing section, Judge Chin offers a passage that really, really cannot be welcome news in Mountain View:

Furthermore, given the sweeping and undiscriminating nature of Google’s unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually. When Google copied works, it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting “snippets” of a particular work would constitute “fair use.” It copied and made search results available en masse. Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually and assert rights in a separate action. Because Google treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis.

Google, which is about to file its motion for summary judgment on fair use, may not entirely mind having its project judged on a group basis. It can say, with a perfectly straight face, that it believed fair use was inherently book-by-book, but since the judge disagreed, it is willing to assert its fair use case on a blanket basis for the whole of the project. Indeed, by resolving the standing motion now, Judge Chin in a sense frees Google to make a stronger argument on the merits.

But, that said, Google cannot be happy with phrases like “sweeping and undiscriminating” or “unauthorized.” This paragraph, along with certain passages in the opinion rejecting the settlement last year, suggests that Judge Chin is casting a very skeptical eye on Google’s justifications for the scanning program. I have to wonder whether the settlement dance ended up hurting Google by making Judge Chin’s first substantive experience with the case one that emphasized the blanket nature and huge ambitions of Google’s scanning.

After this discussion, it’s readily apparent that Judge Chin is also going to grant class certification, as indeed he does. Google only seriously disputed two issues: whether the named plaintiffs are adequate representatives for the class, and whether common issues predominate over individual ones. Everything Chin wrote about individual issues in the standing context carries over: the facts of Google’s scanning and its fair use arguments can be evaluated across subclasses of books. When it comes time for damages or an injunction, authors may need to present proof of ownership. But the fact that some authors are sheep and some are goats doesn’t prevent the court from deciding what relief if any the sheep are entitled to—and only then separating them from the goats.

As for adequacy of representation, Google brought in a survey purporting to show that many authors perceive Google’s scanning programs as a benefit. “[W]ithout merit,” says Judge Chin. Class members’ interests may vary, but this is not a case in which some of them have legal claims that cannot be vindicated except by undermining others’ legal claims. As for the class members who don’t want their books taken out of Google Books, they can opt out. Indeed, even some authors who are happy that Google Books exists might still want to join in the class action.

This is not at all a decision on the merits. But it is still a very big deal, because it means that there will be a decision on the merits. The case is now definitively headed towards the gigantic fair use showdown everyone expected when it was filed in 2005. Google remains confident of its fair use case, I am sure, as the Authors Guild remains confident of its no-fair-use case. In the next few months, we will see the details.

Point to the plaintiffs.