It has been seven years since The Authors Guild and some of its individual members first filed suit against Google, charging that its Library Project—to the extent it posted “snippets” of works still in copyright—constituted a massive copyright infringement. Initially, Google welcomed the class action as a vehicle for negotiating a global settlement of such claims that would have, among other things, given Google the exclusive right to digitize so-called orphan works, millions of books still in copyright but not in print and for which the identity of the copyright owner could not readily be ascertained. It was a breathtakingly imaginative and audacious use of the litigation process, “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court.” But ultimately two negotiated settlements were rejected in the face of intense opposition, including antitrust concerns raised by the Department of Justice. Now Google and the authors find themselves in an old-fashioned lawsuit.
Last week, the presiding judge, Denny Chin, in an opinion here, rejected Google’s attempts to have the The Authors Guild dismissed for lack of standing, and granted the plaintiffs’ motion for class action certification. It is a major milestone in the long-running case, and previews to some extent the arguments that Google will be making on the merits, principally that the snippets constitute fair use of the copyrighted materials for research and promotional purposes. Judge Chin suggested that he would likely subdivide the author class into sub-classes, such as “fiction, non-fiction, poetry, and cookbooks” to assess the fair use issues with respect to different catagories. The case may result in some important guidance in the murky area of fair use. I will be watching this one closely, not only as a member of The Authors Guild and, therefore, now a member of the plaintiff class, but also for any reliance on my own long-ago contribution to the law of fair use, Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191 (3d Cir. 2003), where the court held that it was not fair use to make snippets of motion pictures available on a website, obstensibly for search and promotional purposes.