In a unanimous five-page decision, the United States Court of Appeals for the Second Circuit Monday reversed a ruling affording class action status to the plaintiff in the eight-year-old litigation, The Authors Guild, Inc. et al. v. Google, Inc. (Docket No. 12-3200-cv), PaidContent.org. reported.
"We conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google's 'fair use' defense," according to the appellate court ruling. Could make for some awkward moments in Second Circuit Court cafeteria, as the United States District Court for the Southern District of New York judge being overruled here is Denny Chin, who now serves as a judge on the Second Circuit, though he continues to preside over the Authors Guild/Google case.
As reported here previously (see "TUOL" post 9/19/12), Google, Inc.'s master plan to create the planet's largest digital library--20 million plus books already have been scanned--was challenged in 2005 by The Authors Guild, a nonprofit industry group numbering some 8,500 members, as a purported copyright infringement under the Digital Millenium Copyright Act [Pub. Law 105-304]. Google has countered that neglected and difficult to find works will be more easily accessed and authors won't be harmed if its plan for world domination...er...a world library were realized. Moreover, Google has relied on the defense against copyright infringement of fair use [17 U.S.C. sec. 107], a four-pronged test that looks at the purpose and character of the proposed use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the effect of the use on the potential market for or value of the copyrighted work to determine whether a copyright holder's consent is required before his or her material is used.
The appellate court panel sending back the case to their colleague Judge Chin and decertifying the class action status of the case is a positive development for Google that, among other things, means several fewer zeroes at the end of any verdict were The Authors Guild ultimately to prevail in the suit. Google has questioned the class action status of the plaintiff throughout the case, arguing that it, in effect, caused authors who were not troubled by Google's digital scanning of books to sit in the same section as authors opposed to it.