Litigation continues over the Google Books Library Project, an effort by tech giant Google to collect and provide search capability across millions of books.  The case of Authors Guild v. Google, 2013 U.S. App. LEXIS 13389 (2d Cir. July 1, 2013), first filed in 2005, is a putative class action involving copyright-infringement claims by authors challenging Google’s process of scanning, digitizing, indexing, and making publicly available short “snippets” of their books (and millions of other copyrighted books from major libraries).  The Second Circuit’s recent decision vacating class certification and directing the trial court to consider the fair-use defense in connection with plaintiffs’ class-certification motion is emblematic of the continuing challenges of applying traditional copyright law to new issues posed by digital technology, especially in the class context.

The most recent phase of the case involved Google’s interlocutory appeal of the trial court’s ruling that the case could proceed as a class action.  Google argued that class certification was inappropriate because the plaintiffs would not fully represent the interests of the class because many members of the class might actually benefit from the project—for example, interest in some out-of-print books and little-known authors might actually be increased or revived through online accessibility.  Google also argued that it intends to assert a “fair use” defense—an equitable doctrine that permits use of copyrighted material without the owner’s consent in a reasonable manner for certain purposes, including criticism or comment, news or reporting, teaching (including multiple copies for classroom use), and scholarship or research—which might moot the litigation.

Last week, the Second Circuit vacated the class-certification decision.  The appellate ruling did not turn on Google’s claim that the plaintiffs would not adequately represent the class, although the panel indicated that it saw some merit to that argument.  Rather, the Second Circuit held that class certification was premature because the trial court had not yet addressed Google’s fair-use defense and “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact.”  For example, if Google’s fair-use defense requires individualized analysis of each book, class certification may be inappropriate. 

The case will now go back to the lower court for further analysis of Google’s fair-use defense to the alleged copyright infringement; depending on the outcome, the plaintiffs may be able to revisit the certification issue at a later date.  The upcoming fair-use battle will be closely watched by copyright holders, public institutions (such as libraries and museums who are increasingly exploring digitization of their holdings), technology sector stakeholders, and of course, the increasingly technology-oriented American public.