My previous post about the Palmer Kane case has gotten me wondering how the Google Books class deals with copyright owners similarly situated to Palmer Kane. The now-rejected settlement had an extensive class definition with numerous exceptions and defined terms. But the class Judge Chin certified is much simpler:

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 United States in the English language and registered with the United States Copyright Office within three months after its first publication. Excluded from the Class are the directors, officers and employees of Google; personnel of the departments, agencies and instrumentalities of the United States Government; and Court personnel;

I’m curious about the language I’ve highlighted. I assume that the intention here is to restrict the class to people who are either listed as authors on the registration certificate or can show a chain of title from the author. Does this language exclude the authors of what would have been called Inserts under the settlement? What about the creators of visual material licensed for inclusion in a book, as in Palmer Kane? Among other things, I’m trying to make sure this class doesn’t automatically sweep in the visual artists who have their own pending lawsuit against Google. I don’t think it does, but I confess that I’m not entirely sure. I invite your thoughts about the class definition and what it covers.

You ask, “Does this language exclude the authors of what would have been called Inserts under the settlement?”

I think this is a good question. It’s not clear whether the ambiguity in the class certification is indicative of sloppy drafting or deliberate evasion of the issue.

The issue would seem to be whether the reference to “a United States copyright interest in one or more Books” refers to such an interest in the entirety of one or more such books, or any portion of one or more such books.

It’s routine for even what might appear to be a “single-author” book to include portions (e.g. front and/or back matter, cover and inside-page blurb copy, advertisements, material about other books in the same series or from the same publisher, indices, etc.) of which the primary author of the book is not the author.

So if the class is limited to authors of the entirety of books, it will exclude a huge swath of authors of what they think of as “single-author” books, and who would have thought they were included.

On the other hand, if the class includes all authors of any portion of such a book, than it includes all authors of “inserts” as well as many others.

In the absence of qualifiers, I think the most reasonable interpretation is that “a … copyright interest” (as a choice of words rather than e.g. “the” interest) has to be taken to include such an interest in any portion of the book. I believe the class therefore includes all authors of “inserts” as well as authors of separately-authored indices, blurbs, and other components of complete books.

But who knows what class counsel or Judge Chin intend.

I should also note that copyright in e.g. front and back matter is often registered separately from the body text of the book, resulting in statements on the copyright page of the book like, “Text copyright 1984 by An Author; Introduction and Readers’ Guide copyright 1990 by Another Scholar.”

Under the language of the class certification, either both An Author and Another Scholar are class members, or neither is. I think they both are class members. But I don’t think there is any way to parse the class certification such that An Author is a class member but Another Scholar is not.