The biggest news in Google Books land is that Google has filed a petition with the Second Circuit asking for an immediate appeal of class certification. The case proceeds in the District Court while the Second Circuit decides whether or not to hear the appeal—and even if it does, there’s no guarantee the case will be stayed. Obviously, Judge Chin won’t be one of the judges considering the appeal; this move does put his colleagues in the slightly unusual position of hearing an appeal from one of the fellow members of their court.
The petition doesn’t contain anything substantive that will be terribly surprising to close watchers of the case. Like a good appellate brief, it gives a highly readable statement of Google’s basic position on class certification. Many authors benefit from Google Books and favor its continued existence, so the class representatives are unavoidably adverse to the authors they purport to represent. And further, the diversity of fair use considerations will preclude Google from being able to present the individualized defense it is entitled to present to each book. I was convinced by Judge Chin’s conclusions that these issues shouldn’t block certification, but perhaps the Second Circuit will disagree.
The real surprise comes as an aside: Google has added the law firm of WilmerHale to its team, and the petition is submitted and signed by Seth Waxman, a former Solicitor General and one of the country’s all-star appellate litigators. Google has the money and motivation to hire the best.
In addition, I should catch everyone up on some housekeeping matters in the various cases. Summary judgment motions in the main Authors Guild case have been pushed back to June 26. In the visual artists’ case, the class certification motion has been pushed back to August 20. And in the HathiTrust case against the libraries, summary judgment motions are now due on June 29.