Home » Big Publishing, Copyright/Intellectual Property, Google » Appeals Court Tosses Out Class Action Status in Google Books Lawsuit

Appeals Court Tosses Out Class Action Status in Google Books Lawsuit

1 July 2013

From The Digital Reader:

Remember that lawsuit that the Authors Guild and the AAP filed against Google over Google Print Google Book Search Google Books in 2005?

A 3 judge panel on the 2nd Court of Appeals just ruled that Judge Denny Chin erred in certifying that the plaintiffs could act as a class. Instead the 3 judges believed he should have first considered Google’s argument of a fair use defense.

“Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class — an argument which, in our view, may carry some force — we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues,” the 2nd Circuit said.

Link to the rest at The Digital Reader

More from Paid Content:

The new ruling (see below) is a blow to the Authors Guild, which revived the original law suit in late 2011, because it unplugs Chin’s earlier decision to let the case proceed as a class action — allowing every registered author in America to sue together. Google had objected to the class action status, claiming it forced authors who liked the scanning project into a lawsuit with those who didn’t. The appeals court appeared to agree with Google’s position, writing that is “an argument which, in our view, may carry some force.”

But the most significant part of the ruling is that Chin must now directly rule on whether Google’s activities are “fair use” — a four-part test that looks at issues like the purpose of the copying and its effect on market sales. Google has long argued that its scanning of more than 20 million books has not hurt authors, but helps to make forgotten or hard-to-find works available to larger audience.

. . . .

Finally, the new ruling raises questions on how much longer the Authors Guild is willing to continue the expensive litigation. The appeals court’s decision to decertify the class action likely crushes the Guild’s hopes of a big settlement payoff.

Link to the rest at Paid Content

Big Publishing, Copyright/Intellectual Property, Google

24 Comments to “Appeals Court Tosses Out Class Action Status in Google Books Lawsuit”

  1. I certainly wouldn’t want the Authors Guild or AAP representing me in any fashion.

  2. I can’t remember–was Google monetizing the book search?

  3. it was because google decided to break copyright of literally millions of living authors and digitize their works without author’s permission, in order to place advertising alongside snippets and full pages of the works on the google system under the guise of making books availible [for making money for Google only], and to bypass the authors in terms of pay for their works to draw advertizers, and to keep the digital copies only for Google without sharing them with the authors of the works, claiming they had a right to do as they wished, and in fact, spoke of stance of better to apologize than ask permission, etc, the usual tropes for money rakers.

    The APA and others settled it out when Google agreed that if authors [tho still hoards of authors have no idea what google has done to use their works’ contents as draws for google to run and rake ad revenue without sharing] or publishers asked nicely, they would only run ‘snippets’ of the work, instead of pages and pages as Google chooses by whim.

    I dont know who goes to ‘google books’ to check out the latest or oldest books. I dont. It’s a bloated site with lots of ads, no feedback and just sort of books strewn about. And the obligatory tiresome links to the same ol’, same ol’… nothing new there: amz/ bn/etc.

    Scott Turow wasnt President of Authors Guild board when the lawsuit commenced.

    • I don’t like the Google’s opt-opt model–it turns copyright on its head. If authors like it and think its beneficial to them, they can opt-in.

      Ask yourself, would google even do this program if it couldn’t monetize it? Why does Google think it gets to monetize others’ work? Why are authors (and other creatives for that matter) seemingly always on the short end of the stick when it comes to money when content is presumably king?

      I happen to have a few of my books in the library program in order to test selling books in the Play store (which Google requires). The Play store terms are worse than Amazon’s and the interface is byzantine. It is designed for publishers with huge catalogs they want to upload at once. Worse, they don’t have an agency pricing mechanism for indies, which makes it impossible to set the price and not worry about Amazon’s MFN clause kicking in. It’s not even a wholesale model either, so you could get squeezed. I don’t recommend it and until they make the user interface much more friendly and either go wholesale or agency pricing, but not an amalgam of the two.

    • “I dont know who goes to ‘google books’ to check out the latest or oldest books. I dont. It’s a bloated site with lots of ads”

      There are no ads in Google Books, other than the aforementioned links to buy the book.

      The rest of your criticism is similarly off-base.

      • I can go look at a report of the number of page view and ad impressions that have been made for each of my books in the library program. Considering my books have been opted-in, perhaps they are displayed differently than other books, but there are ads present.

        • That may be the case for books that have been opted in.

          If you’ve opted in, what’s your beef, exactly?

          • It was my choice to opt-in. My choice required action on my part as the author to have my work become part of the program. Opt-out changes that dynamic to where passivity becomes acquiescence–I don’t like that.

      • Tony is such a great name. One I associate with fervor, not rudeness. perhaps I am misreading your tone Tony.

  4. What USAF said. Google decided to make digital copies of oodles of peoples’ books without asking, then make them searchable, online. Let’s see, what other kind of organization makes books available… oh right, libraries, except they actually buy their copies, in formats the author has approved of.

    Just because they aren’t selling whole books doesn’t mean it isn’t a violation of copyright.

    PG, do you have anything to say about this decision? To a layman like me, it seems that class-action suits are meant exactly for this kind of thing.

    • “oh right, libraries, except they actually buy their copies, in formats the author has approved of.”

      The books Google is scanning are provided by libraries.

      “Just because they aren’t selling whole books doesn’t mean it isn’t a violation of copyright.”

      One court disagrees.


      • And the Libraries have what rights, exactly?

        • According to the court, they have the right to scan the books and put them in a search engine.

          • You misinterpret my meaning–My comment above is about the fact that Libraries don’t have ownership of the copyright and can’t give Google a license. Just because the Library obtained a legal copy, doesn’t mean they can give a copy to Google. Google is a commercial enterprise making money off of display advertising. It doesn’t have the same character as a non-profit library. In HathiTrust, the trust itself had a fair use defense–for itself–producing accessible copies fo the blind, which is a statutory exception 17 U.S.C.§ 121 to the author’s exclusivity.

            • The decision didn’t really turn the commercial aspects (or lack thereof).

              As far as I can tell (and I am not a lawyer) the judge found that it was fair use due to the transformative nature of the use, among other factors — snippets of books returned by a search engine are not the same as the books, and do not significantly compete with the book in the marketplace.

              Do you also get upset when bookstores put your books right out on the open shelves, where just anyone can come along and read snippets of them without paying?

              Google has also won several similar cases related to the thumbnail images returned in Google Image Search, I believe.

              • It should be noted here, too, that the bookstore hasn’t necessarily bought your book. It’s probably returnable. Your book (if you’re lucky) goes on the shelf in hundreds, maybe thousands of bookstores. Many people (if you’re lucky) pick it up and read little bits of it. Maybe they buy it, maybe they don’t.

                If the book doesn’t sell, the store returns it and you and the publisher don’t get a dime.

                How, in principle, is this different from what Google is doing?

              • Well Tony, some of us have been to law school, even if you havent by your own admission. And it wasnt the libraries who ‘gave permission’ as you mis-state it. It was the boards/regents of the universities who were given bags of money by Google. Librarians are NOT the key operators in all this, they serve at the pleasure of their huge admins.

                Secondly, please factually cite the exact rulings where ‘the judge found that it was fair use…” etc. There is NO such ruling. The ‘news’ for the last week has been the opposite of what you posit: that Judge C, erred in NOT deciding first and foremost re fair use. There are far more SPECIFIC LEGAL points to whether it is ‘fair use’ other than the ‘transformational’ trope. That Google has entire manuscripts digitized and stored is an entirely different and far larger issue than tending to ‘snippets.”

                If you want to argue the issue, you dont have to be a lawyer, you’d only have to read the decisions, which it appears you have not.

                I see you do not grasp the issue of digital being a phenom in itself, and if one were to argue before the court with limp ideas about people standing in bookstores reading ‘little bits’ as ok, one would lose the case for the defense entirely based on such ‘analogies’ instead of facts as applied to written law… which is very different than ‘opinion’ about standing around reading ‘little bits.’


                • “Well Tony, some of us have been to law school, even if you havent by your own admission. ”

                  I’m pretty sure that would include the judge in the case, yes?

                  “Secondly, please factually cite the exact rulings where ‘the judge found that it was fair use…” etc. There is NO such ruling.”

                  I’m sorry, but there was, and I did cite it.


                  You might not like it, but it exists. It was a real ruling, from a real judge, who’s been to a real law school.

                  The case this week about was about the class action status. This case was about fair use. And the judge did, in fact, find that scanning entire books, retaining digital copies of them, and putting them in a search engine was fair use.

                  “Plaintiffs’ motions are DENIED…Defendant and Defendants’ Intervenors’ motions for summary judgment are GRANTED. Their participation in the MDP and the present application of the HDL are protected under fair use… The Clerk of the Court is instructed to close the seven open motions, close the case, and remove it from my docket.”


                • you’re dead wrong Tony. That’s a ruling in the Hathi trust bs which is ongoing. Not the Google case which is what we are talking about.
                  I stand on what I said.

                  And if one were to know the rulings, judgments, laws and precedents, I’d suggest one not be trying to formulate in depth by quoting from the one-inch deep ‘Scribd’ We use the pro: L/N.

                  I also see that you are trying to sell an ebook formatting product you designed? Would rather hear about that. Good luck to you on that. That’s sincere.


  5. I’ve actually opted in with some of my books, and I’ve found resource information through Google Books that I then went out and bought because their pages and pages of information wasn’t enough to do all of my research but it *was* enough for me to know that the book was going to be what I needed, since I don’t live anywhere near a bookstore and couldn’t check out the book for myself before buying. A snippet might not have been enough for me to see that the book contained what I needed and since it was an expensive book, I wasn’t about to buy it if it wasn’t the right resource for my writing project.

    There’s obviously a difference between having several pages and having a third of the book available–I want them to give readers a taste, a big enough one to know that the book is what they are looking for, but not enough that they can circumvent the purchase process entirely.

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