Remember when Judge Chin certified a class action in the Google Books lawsuit? Seven years and a failed settlement into the case, it looked like it might finally be going somewhere. Yeah, well, not so much, because today the Second Circuit just vacated the class certification and remanded to Judge Chin to consider … fair use. The order is brief (five pages), but to my eye it strongly suggests that the judges in the appeal believe that Google has a compelling fair use defense that will end the case without the rigamarole of a full class action.

Google had argued, with support from academics, that the Authors Guild and its fellow associations weren’t good representative plaintiffs for all authors. The court didn’t address that argument, except in a brief aside, saying it was “an argument which, in our view, may carry some force.” Instead, it turned to fair use, saying:

[W]e believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact.

There follows a page-long string cite of cases to illustrate the proposition that class certification requires some consideration of the merits of the case, such as the statement from a famous Fifth Circuit case that, “[A] court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” Typically, when a class certification is intertwined with the merits of a case, the judicial response is to go ahead and consider the merits so far as necessary to resolve the class certification question, but no further.

That’s not what the Second Circuit did, however. Instead, it remanded the case “for consideration of the fair use issues.” And the court was explicit that this meant resolving the fair use questions first, before ruling on class certification: “[W]e are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been resolved will not prejudice the interests of either party.” This is … unusual. In particular, it seemingly takes away Judge Chin’s ability to use subclasses to focus the fair use questions, or even to consider the fair use of books other than those which are owned by the individual named plaintiffs. Without a class, all the other books — some perhaps with different or stronger fair use cases — are off the table, and not properly before the court.

My best guess, based on the opinion and what I have heard about the oral argument, is that the judges on this appeal were convinced that Google has a winning fair use defense across the board. It’s not a fact-dependent defense, one that would work for some of the books owned by class member but not for others. Rather, it’s a general defense, one that would render class certification itself irrelevant, even “moot the litigation.” The court’s quotation of Wal-Mart v. Dukes language that a defendant is “entitled to litigate its statutory defenses to individual claims” also suggests that it believes the fair use ruling will go in Google’s favor rather than the plaintiffs’.

These fair use issues were, however, outside the scope of the appeal, which concerned only class certification. Indeed, appellate record wouldn’t have contained the factual material necessary to make a justifiable fair use ruling. So, I believe, the court decided to gently signal what it thought about the fair use question and invite Judge Chin to cut to the chase. It’s not the most juridically correct resolution of the appeal, but it seems justifiable on pragmatic grounds. Class actions are cumbersome, slow, and expensive: why spin up all that machinery if the case is going to be dismissed on fair use grounds in the end?

Today’s news is good for Google and bad for the authors’ associations bringing the suit. Not only does it slow down the one lawsuit in which they’ve made any significant headway and undo the one major ruling in their favor in the past few years, it also signals that three Second Circuit judges are inclined to see the fair use questions from Google’s point of view. If the case ever does manage to reach the fair use merits, Google is now that likelier to get the same kind of sweeping fair-use blessing that its library partners got in the HathiTrust decision. The Google Books program lumbers on, one step closer to being unambiguously legal.

Given that “it’s not the most juridically correct resolution of the appeal”, I’d expect the Authors Guild to ask for a rehearing en banc. Any bets on the odds of that move?

I think you’re right. The next move is the petition for rehearing or rehearing en banc. I don’t expect either to be granted. The short per curiam opinion signals that this isn’t an interesting appeal or a close decision, and it was already a discretionary appeal in the middle of the case.

The opinion ends by directing that the mandate issue forthwith. That transfers jurisdiction from the circuit court back to the district court. For a petition for rehearing or rehearing en banc to be granted, the mandate would need to be recalled. The direction to issue the mandate forthwith is a signal from the panel of its views on any petition for rehearing. And the Second Circuit has - by far - the lowest percentage of cases heard en banc of all the circuit courts.

Aha! And, per the docket, the mandate has issued. Thanks, Michael.

Forgive my ignorance for ianal (but remain oddly interested this question): If Google wins across the board on fair use and the class remains uncertified, who has standing to appeal? Just the named plaintiffs?

And if Google wins across the board, doesn’t that mean that the fair use decision in fact had no bearing on the class certification question?

I agree it seems some ends are justifying some means here.

Maybe I’m reading into the opinion what I want to be there, but I think there’s an intermediate case:

That the interplay between fair use and class actions requires subclassing, and that some subclasses will have valid fair use defenses; some subclasses will not have valid fair use defenses; and some subclasses will require individual resolution of fair use defenses, and therefore can neither be certified as classes nor resolved on the merits in this matter.

The biggest problem with this suit, from day one, has been an organization trying to represent too much against Big Data (not just Google, either, even though Google is the named defendant). As Feist demonstrates more than adequately, some kinds of “books” are not like the others… and because that concept goes to the core of Fed. R. Civ. Pro. 23’s commonality, typicality, and adequacy of representation requirements, there can’t be a truly “separate” consideration of fair use and class certification in this context.

As a specific example, consider Isaac Asimov’s startlingly diverse body of works. His science fiction must be analyzed differently from his scientific articles, which in turn must be analyzed differently from his memoirs, or his science popularizations, or his literature guides, or… The fundamental problem with this lawsuit is that the authors are not the books, but both sides have persisted in treating them as if they are for all purposes.

Thanks, all!

Judge Chin found that the Authors Guild had associational standing to represent its members. That holding wasn’t challenged in this appeal. So Judge Chin has those books whose copyrights are owned by Authors Guild authors to work with, in addition to those of the three named plaintiffs. If Google wins across the board, class certification will be moot because none of the available plaintiffs will have live claims, so they can’t represent the class.

To me the most interesting part of the Second Circuit decision was the announcement that any appeal of Judge Chin’s ruling on fair use will come before the same panel of Second Circuit judges.

Also interesting is whether, given the the corpus in the HathiTrust case substantially overlaps with the GBS corpus, will this same panel take the AG appeal in HT?

And whether the panel in HT case will wait to see what Judge Chin does in the AG v G case and who appeals to decide or issue an opinion in the HT case? Or will the panel issue an opinion in the HT case to influence Judge Chin’s decision in the AG v G case?

To me the most interesting part of the Second Circuit decision was the announcement that any appeal of Judge Chin’s ruling on fair use will come before the same panel of Second Circuit judges.

Also interesting is whether, given the the corpus in the HathiTrust case substantially overlaps with the GBS corpus, will this same panel take the AG appeal in HT?

And whether the panel in HT case will wait to see what Judge Chin does in the AG v G case and who appeals to decide or issue an opinion in the HT case? Or will the panel issue an opinion in the HT case to influence Judge Chin’s decision in the AG v G case?

Good point. Keeping the same panel makes the hints about fair use even more meaningful. It strikes me as possible that the HathiTrust decision will issue before Judge Chin rules on the Google remand, given that briefing has already been completed in the former.

Of course, there wouldn’t be this mess of parallel cases if Judge Chin hadn’t declined the HathiTrust case as not related when it was initially assigned to him.

You do not need to certify a class to argue against a defense. The District Court should have ruled on the parties’ summary judgment motions, including Google’s fair use defense, first, instead of precipitating this horrendous, time consuming, class action racket, which turned instantly solely to milking a large sum somewhere north of $100M out of Google (to buy all the lawyers involved country homes, pocket change for Google), plus years of antitrust cartel collusion between publishers and Google, also confusing and deterring all individual rights owners in prosecuting their own claims or planning their affairs, without knowing what might be coming at them from left field from a court redistributing their rights. You only need to certify a class to determine REMEDY and solely in very limited cases wholly appropriate for class action. In this situation, every individual owner has his/her/its own rights and remedies, solely determinable only BY those individuals in light of their personal individual contracts, which all of copyright provides clear remedies for—individually. This was why it was reversible error for Chin FIRST to certify the Authors’ Guild as a class.This is Civil Pro 101. State cause of action. Defendant states defense. Rule. If the defendant’s defense is good, and it is innocent, you never reach whether the plaintiffs are entitled to represent a “class” for purposes of fashioning a remedy for its guilt, because there is no law broken, the defendant is not guilty of anything, and there are no grounds for any remedy.

Don’t be so sure the Second Circuit will favor Google. One member of the appeals court, Pierre Leval, is the author of the 1990 Harvard Law Review article in which the concept of “transformative use” was first articulated. It later became a touchstone for many fair-use cases after the Supreme Court followed Leval’s reasoning in the 1994 landmark Campbell vs. Acuff-Rose (“Pretty Woman” parody) case. But the cases using that concept in the Ninth circuit differ significantly from how Leval framed it, because the Ninth Circuit did not insist on the value added by human creativity as the core meaning of “transformative” but instead adopted a purely functional interpretation such that a computer algorithm’s operation suffices for creativity. I have argued this point at length and in considerable detail in a number of articles about transformative use, which can be found here: http://www.psupress.org/news/SandyThatchersWritings.html. this view has also been articulated in the AAP’s amicus brief in the HathiTrust case, which is the only copyright case so far decided in the Second Circuit that follows the Ninth Circuit’s lead.