The long- delayed lawsuit over the Google Book project took a significant step toward court action and potentially farther away from a settlement with the filing of a motion for Class Certification by The Authors Guild and several individual authors. With the filing, the authors are asking the court to move the case forward as a class action lawsuit, with the guild and authors representing a class of thousands or more individual authors. This could increase the possibility of significant damages against Google if they are found to have infringed on the authors’ copyrights. Google is expected to oppose the motion to certify the class and is also expected to ask the court to dismiss the case outright.
The lawsuit began more than 6 years ago when authors and publishers objected to what was then called the “Google Library Project.” In an effort to digitize “the world’s collective knowledge,” Google entered into agreements with a number of libraries to scan out-of-print books from their collections. Many of these books were and are protected by copyright. Google provided a digital copy of the work to the library but also stored digital copies of the works on their own servers. When a Google search of the internet was executed, the search also encompassed these books—now known as Google Books—and provided the searcher with a “snippet” of the book, a “few sentences showing (the) search term in context.”
As Google had neither sought nor obtained permission from the copyright owners for this copying and use, the authors and publishers filed copyright infringement lawsuits, later merged into a single action. Google responded by indicating that its use of “snippets” was a fair use, permitted by Section 107 of the U.S. Copyright Act. After several years of initial discovery, a settlement was announced that would have allowed Google to develop and market a subscription database containing the digitized works in return for royalty payments to the copyright owners.
The settlement was hailed as a means of making available vast resources previously consigned to “dusty library shelves.” However, notwithstanding the praise, objections arose that the settlement violated fundamental principles of copyright law by taking rights without prior permission, allowing authors to “opt-out,” rather than “opt-in,” and that it gave Google a monopoly over the scanned works.
In March 2011, a federal court judge rejected the proposed settlement, saying that it was not for the courts to stretch copyright law so far as to cover the settlement—that was up to Congress. The court also objected to Google’s monopoly over the works and the use of full texts of the works rather than “snippets,” and it raised concerns about international copyright and privacy issues.
In the wake of the settlement’s rejection, the parties continued to discuss a revised settlement, but in September 2011, the court began to move the case forward toward a trial. The Authors Guild’s motion to pursue a class action suit is the first of what are expected to be several legal salvos by all of the parties as the case moves forward.
The lawsuit was initially filed by three individual authors, plus The Authors Guild as an association representing the interests of its 8,000 members. As an association, the guild could represent its membership in seeking an injunction against the Google Books project, as well as a declaration that Google’s actions constituted copyright infringement. However, as the guild does not specifically own the copyrights in the works, those are owned by individual authors (or publishers—which will be addressed shortly), the guild could not obtain damages on behalf of the authors.
In seeking a class action, the guild and the individual authors would represent all authors who “hold a United States copyright interest in one or more Books reproduced by Google ... who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts, or sole proprietorships who are heirs...of such authors.” By representing all of the authors as a class, the lawsuit is not limited to the members of the Guild and could obtain infringement damages all of the authors in the class. With damages possibly topping $150,000 for each infringement, the damage potential becomes enormous.
In order to be certified as a class, the authors must show that the legal and factual issues are common throughout the class; that the claims and defenses of both the named plaintiffs and the defendant (Google) are typical of the class; and that the representative authors can fairly and adequately protect the members of the class. They must also show that the legal issues and facts that are common to the class members “predominate” over any individual member’s particular legal issues or facts.
Of course, Google is expected to contest the motion to convert the case to a class action. Google has also indicated that they will ask the court to dismiss the case outright.
What some commentators have found interesting in this latest burst of activity is the absence of the publishers who joined into the original lawsuit. At a pre-trial conference in September 2011, the publishers indicated that they were “close” to a separate settlement of their claims. It could be that the publishers, as owners or license-holders of large groups of copyrights, as well as being corporate entities in their own right, may be in a better position to find common ground with Google on a scheme to make their content available. Prior to, and over the course of the litigation, a number of publishers have reached licensing agreements that could serve as a settlement model.
Adding to the complexity is a separate lawsuit filed in September 2011 by The Authors Guild against the HathiTrust and several libraries who participated in the scanning and have begun to post some of the scanned works on the HathiTrust and individual library websites. While that case is in its early stages, at least one commentator has suggested that the suit may be intended, at least in part, to put pressure on Google.
The class action and dismissal motions will likely be heard early in 2012. Stay tuned.