On May 31, Judge Chin issued an opinion denying Google’s motion to dismiss the claims brought by the Authors Guild (“AG”) and the American Society of Media Photographers and other named photographers’ associations (collectively “ASMP”) in their separate suits against Google relating its scanning of books and the images they contain. The judge also granted class certification to the three representative plaintiffs in the AG suit.
The first question addressed was whether representation by the AG and ASMP of their members’ interests was appropriate in these cases. Two of the elements of the three-part test for whether an association has standing to represent its members in a class action were conceded by the parties, leaving only one element at issue: whether the nature of the copyright infringement claims and the injunctive and declaratory relief sought (the AG and ASMP are not seeking money damages) would require the participation of individual association members.
The judge found that some limited individual participation might be necessary in order to establish facts relevant to the plaintiffs’ copyright claims (such as establishing beneficial ownership of the individual where some rights have been assigned) but that this limited participation did not preclude associational standing for AG and ASMP. In support of associational standing, the judge also cited AG’s prominent role in the Google Books proceedings generally and the benefits that AG and ASMP brought to their members’ interests in these cases.
Google argued that individual participation was necessary to establish certain elements of its fair use defense (e.g., that the market for some works would be affected in different ways than others). The judge rejected this argument, suggesting that the fair use analysis of classes of works could be accomplished by grouping association members and their works into sub-groups (e.g., fiction, non-fiction, poetry) and assessing the merits of the fair use defense as to each sub-class rather than at the individual work level.
The Judge then used Google’s own scanning practices to undercut – on an equitable basis – Google’s position against associational standing, noting that “when Google copied works, it did not conduct an inquiry into the copyright ownership of each work… . It copied and made search results available en masse. Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually and assert rights in a separate action. Because Google treated the copyright holders as a group,” the judge concluded, “the copyright holders should be able to litigate on a group basis."
On the issue of class certification, Google did not dispute that three of the four Rule 23(a) elements for certification were met - numerosity, commonality, and typicality. Thus, the only disputed element was whether the class representatives in the AG case would adequately represent the class. Notably, the class as defined in this case is far narrower than that in the previous settlement proposals, being limited to authors (and their heirs, successors and assignees) who reside in the U.S. and hold a U.S. copyright interest in one or more books actually scanned by Google.
Google argued that the adequacy requirement was not met because the interests of the named plaintiffs conflicted with those of the absent authors whose works were scanned. In addition, Google contended that “most” authors perceive its scanning as a benefit -- citing its own survey data in which over 500 authors responded that they “approve” of Google’s scanning. The judge rejected both arguments, noting that “Google has not pointed to any legal or factual argument made by the lead plaintiffs that would undermine the copyright claim of any other class member” and that the decision by some authors not to challenge Google’s actions is no basis for finding lack of adequacy.
Finally, the judge found that the common claims at issue (the copyright claims of all class members and Google fair use defense) predominate over individual ones, and that the use of the class action in this case would be “without question, more efficient and effective than requiring thousands of authors to sue individually.” Therefore, he concluded, the Rule 23(b)(3) standards were also met, and certification of the class was appropriate.
Session 11 - Lois Wasoff returns for an update on Google Books
Recorded on September 28, 2011
On September 15th Judge Denny Chin convened the parties in the Google Books case for a status hearing.
Session 10 - Unraveling the Rejection - The Google Book Settlement
Recorded on March 30, 2011
On March 22, Judge Chin issued his long awaited opinion in the Google Book Search settlement proceedings, rejecting the Amended Settlement Agreement (ASA) proposed by the Authors Guild, AAP and Google.
In his 48-page opinion, Judge Chin discussed the various objections before the court, including concerns regarding copyright, international law, antitrust, privacy and the class action/procedural aspects of the case - ultimately concluding that the ASA is not "fair, adequate and reasonable" as required for court approval of a settlement.
Judge Chin did, however, leave the door open for the parties to renegotiate and resubmit the settlement, urging them to consider adopting an "opt-in" rather than "opt-out" model which would ameliorate many of the concerns raised in the objections.
Session 9 - Reactions to Google's Amended Settlement Agreement: Copyright Law Expert Lois Wasoff discusses the latest reaction and commentary
Recorded on February 12, 2010
On February 4th, another Statement of Interest was filed by the Department of Justice regarding Google's Amended Settlement Agreement (ASA). While acknowledging the potential public benefits of the ASA, the filing reiterates many of the same concerns raised in the DOJ's initial Statement of Interest. We talk again with Lois Wasoff to help sort out the latest reaction and commentary regarding the ASA.
Session 8 - Google Book Settlement: Copyright Law Expert Lois Wasoff Reviews the Amended Settlement
Recorded on December 10, 2009
Session 7 - Google Book Settlement Amended: Copyright Law Expert Lois Wasoff Highlights the Changes
Recorded on November 18, 2009