Google’s Fair Use Defense Takes Priority Over Author Class Certification

In the latest development in The Authors Guild v. Google book saga, the Second Circuit Court of Appeals ruled that the district court’s certification of the class was premature in light of Google’s assertion of a fair use defense and the absence of a ruling by the district court on the substance of Google’s fair use defense.  The Authors Guild filed this suit in 2005, alleging that Google infringed authors’ copyrights by scanning and indexing more than 20 million books and making snippets of books available to the public as search results.  The district court rejected an amended proposed class settlement agreement (ASA) on March 22, 2011.  My post entitled Google Book Settlement Rejected – For Good Reason discusses the district court’s decision.

After the district court rejected the ASA, the plaintiffs moved to certify a proposed class 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, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors.”  (Opinion pdf page 3).  The district court granted the motion to certify the class.  Google appealed the district court’s ruling certifying the class, arguing that its fair use defense might moot the litigation and that the plaintiffs do not fairly and adequately protect the interests of the class. 

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