A federal appeals court on Monday said a lawsuit against Google Inc’s effort to create the world’s largest digital books library should not have been allowed to proceed as a class action.
The 2nd U.S. Circuit Court of Appeals in New York said Circuit Judge Denny Chin erred in prematurely certifying a class of potentially hundreds of thousands of authors, saying he should have first determined the merits of Google’s “fair use” defense.
“Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class — an argument which, in our view, may carry some force — we 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,” the 2nd Circuit said.
Analysis and Comment
University of Maryland Law professor and Google Books expert James Grimmelmann has posted analysis of today’s ruling on The Laboratorium blog.
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.”
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.