Google received a procedural setback today in the long running litigation over its book-scanning project. Presiding Judge Dennis Chin ruled that the Authors Guild and a parallel trade organization for photographers could represent their members collectively against Google in the class action. Google had wanted to remove these organizations and deal individually with authors and their legal representatives.
The decision today (order embedded below), though procedural only, may have an impact on the outcome of the case. That’s because it effectively gives the authors and photographers more leverage than they would have had individually.
The Judge’s order says the litigation is more efficiently resolved in the aggregate as a single class action with the trade associations representing their members than requiring individual authors to proceed against Google:
Class action is the superior method for resolving this litigation. It is, without question, more efficient and effective than requiring thousands of authors to sue individually. Requiring this case to be litigated on an individual basis would risk disparate results in nearly identical suits and exponentially increase the cost of litigation.
The Authors Guild brought a class action lawsuit against Google in 2005 for “massive” copyright infringement over its book scanning project. The parties worked out a settlement in 2008 and sought to finalize that settlement after many rounds of hearings. The settlement called for writers who objected to opt-out or be bound by its terms.
Judge Chin declined to approve the settlement because of the “opt-out” provision, which he deemed unfair. He invited the parties to bring a new settlement to the court, which I don’t believe was ever done.
A trial will now proceed over the question of whether Google’s scanning of millions of books (copyright infringement) can be excused by the defense of Fair Use. If Google loses at trial it would need to set up a system whereby it seeks permission to scan works from individual authors and photographers and/or their publishers. The question of any compensation or payments will apparently not be litigated in this next round. 05 cv 8136 and 10 cv 2977 May 31 2012 Opinion