On November 9, Google asked a federal appeals court to reverse the May ruling that the Authors Guild’s long running case against Google Books could go forward as a class action. In August, the U.S. Circuit Court of Appeals for the Second Circuit decided to allow Google to appeal for decertifying the case as a class action.
(The Association of American Publishers (AAP) and publisher plaintiffs McGraw-Hill, Pearson Education, Penguin, John Wiley & Sons, and Simon & Schuster settled their claims against Google in October, though virtually all the terms of the deal are confidential.)
Since the last time Google sought dismissal of the Guild case, in July, Google’s side has been strengthened by the ruling in the Guild’s case against the HathiTrust, for allowing Google to digitize their holdings and putting them to several uses.
Though the Trust’s use of the resulting scans is a separate issue, legally, from Google’s use, it is notable that none of the rationales justifying the mass scanning efforts relied on the libraries’ non-commercial status. Rather, Judge Baer said that “the use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works,” e.g., search rather than actual access —an argument which would apply equally to Google’s use of the text.
More from Gary Price, editor of INFOdocket.com:
Google renewed its claim that scanning 20 million books counts as a “fair use” under copyright law, and asked a federal appeals court to throw out a May ruling that let the Authors Guild go forward with a long-running class action case.
In a brief filed late Friday in New York, Google argued that a class action trial would deny it an opportunity to argue on a book-by-book basis that its scanning was a so-called “transformative” use that falls outside of copyright. This “fair use” argument received a boost in October when a judge dismissed a similar case that the Authors Guild brought against a group of university libraries over a digital collection known as the Hathi Trust.
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On a related note, the Authors Guild filed for an appeal of the HathiTrust decision late last week.