Good News for Authors in Google Litigation: Fair Use Decision Likely - Fordham Intellectual Property, Media & Entertainment Law Journal
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Good News for Authors in Google Litigation: Fair Use Decision Likely

Good News for Authors in Google Litigation: Fair Use Decision Likely

In the latest development in the Authors Guild v. Google litigation, Judge Denny Chin, sitting by designation, denied Google’s motion to dismiss the copyright infringement claims against it in the Southern District of New York, and granted the Authors Guild’s motion for class certification.

The Authors Guild originated its suit in 2005, alleging that Google engaged in massive copyright infringement by scanning over 12 million in-copyright books from the stacks of major research libraries and publicly displaying “snippets” of these works for internet search purposes.  Google will argue that the copying—the cornerstone of the “Google Books” project—amounts to fair use.

Judge Chin’s opinion first addressed the motion to dismiss. Google had challenged whether the Authors Guild—not having been injured itself—has standing to represent all authors whose books had been copied without permission. Chin held that the doctrine of associational standing does in fact allow the organization to litigate on behalf of its members.

At issue was whether either the claim or the requested relief “requires the participation of individual members in the lawsuit.” Is each injured party’s participation necessary to properly resolve the case?  Not here, according to Judge Chin. Google argued that two fair use factors—“the nature of the copyrighted work” and “the effect of the use upon the potential market for or value of the copyrighted work”—require an individualized inquiry, because different works require different treatment.


However, Judge Chin concluded in the authors’ favor that different types of works can be properly analyzed by classifying them in sub-groups such as “fiction, non-fiction, poetry, and cookbooks” and then assessing the merits of the fair use defense as it applies to each sub-group. In a passage notable for its admonitory tone, Judge Chin wrote,

When Google copied works, it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting “snippets” of a particular work would constitute “fair use.” 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 copyright holders should be able to litigate on a group basis.

As one might infer from the foregoing passage, the class certification issue was resolved more easily, and also in favor of the Authors Guild. Here Google made a stand behind the Rule 23(a) adequacy requirement, arguing there is “a fundamental conflict between the interests the named plaintiffs seek to advance and the interests of absent class members.” Google supported this argument by presenting a survey in which 58% of authors approved of Google scanning their work for search purposes, and 19% feel they benefit financially from Google’s scanning. However, according to Judge Chin, “[the fact] that some class members may prefer to leave the alleged violation of their rights unremedied is not a basis for finding the lead plaintiffs inadequate.”

So, the authors can take comfort in this procedural victory, and those following the case for its fair use implications can take comfort in the fact that it’s a good deal closer to being decided on the merits.

Ryan Fox

Ryan Fox is a 3L at Fordham Law and Editor-in-Chief of the Fordham Intellectual Property, Media & Entertainment Law Journal. He graduated from University of Missouri in 2003, and in 2006 received an MFA from University of Virginia.