When last we checked in with The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, Judge Denny Chin had certified the case as a class action on behalf of all “persons residing in the United States who hold a United States copyright interest in one or more books reproduced by Google as part of its Library Project.” I suggested that this was a major milestone in the case, and that it cleared the way for Judge Chin to make some very important fair use law. At this point, the case centers on the internet display of “snippets” (roughly 1/8 of a page) of copyrighted books which Google has digitized (without the consent of copyright owners) in response to search engine requests, a far cry from the universal digital library that Google had envisioned at the outset.
The Second Circuit Court of Appeals, however, then ordered that the case be stayed while it considered the propriety of the class certification. Yesterday, in a short per curiam opinion, the Second Circuit vacated the class certification and ordered that Google’s fair use defense be adjudicated first, because “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot . . many class certification issues.” Although the appellate panel, which included the father of the modern expansion of fair use through “transformative use” analysis, Judge Pierre Leval, did not address the merits of the fair use issue, its comments at the oral argument and its suggestion that resolution of fair use could “moot” class certification strongly telegraph acceptance Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.