Appeals Court Hints VERY Strongly That Google Books Is Fair Use, Even Though It Wasn't Asked About That

from the look-at-that dept

Back in May, we noted that the appeal in the Authors Guild case against Google over Google Books had taken something of an odd turn. The specific question on appeal had been entirely focused on whether or not it was appropriate to have this be a class action lawsuit for all authors. Google had, quite reasonably, argued that fair use can be pretty fact specific, and a very different analysis may apply for different kinds of books, and thus it would be a bad idea to lump all authors together in a class action lawsuit. However, the district court had ruled in favor of a class action, and supposedly it was that question that was being discussed on appeal. Instead, we noted that during the oral arguments, the three judge panel seemed to have no interest in that actual question, and instead talked about how Google’s book scanning project seemed likely to be covered by fair use.

So, I guess it should come as little surprise that today’s ruling on the matter barely even mentions the class action issue, other than to say that Google’s argument “may carry some force.” Instead it sends the case back to the district court, saying that it should do the fair use analysis first, suggesting that this might make the whole question of whether or not a class should be certified entirely moot. In other words, the Second Circuit is basically screaming to the district court: “what Google is doing is fair use, full stop, so we’re wasting time arguing about whether or not this is a class action: just end the thing by saying it’s fair use.” The ruling is short and sweet and is a huge victory for Google. Here’s the key part:

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, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact, see Fed. R. Civ. P. 23(a)(2), (3), (b)(3). See, e.g., FPX, LLC v. Google, Inc., 276 F.R.D. 543, 551 (E.D. Tex. 2011) (denying plaintiffs’ request for class certification “because of the fact-specific inquiries the court would have to evaluate to address [defendants’] affirmative defenses [including fair use of trademarks]”); Vulcan Golf, LLC v. Google Inc., 254 F.R.D. 521, 531 (N.D. Ill. 2008) (“The existence of affirmative defenses [such as fair use of trademarks] which require individual resolution can be considered as part of the court’s analysis to determine whether individual issues predominate under Rule 23(b)(3).”); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.12 (1978) (“Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses . . . and the presence of common questions of law or fact are obvious examples.” (quotation marks omitted)); Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (“[A] court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”); cf. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (holding that “a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims”). Moreover, we are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been
resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand. Accordingly, we vacate the District Court’s order of June 11, 2012 certifying plaintiffs’ proposed class, and we remand the cause to the District Court, for consideration of the fair use issues.

I’m actually somewhat surprised at this. While I’ve argued from the very beginning that Google’s book scanning project was clearly fair use (and was annoyed when it looked like Google was dropping that argument in its original settlement effort), it does seem a bit strange for the judges to jump straight to the fair use analysis across the board. I would guess that the Author’s Guild, somewhat ironically, might now want to hit back with Google’s own argument in trying to block the class, by saying that different authors have different arguments, and seeking a fair use judgment across the board wouldn’t make any sense. Still, in terms of getting this many-years process finally over and done with, it seems like skipping ahead to the fair use analysis is probably the best way to finally settle the matter.

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Comments on “Appeals Court Hints VERY Strongly That Google Books Is Fair Use, Even Though It Wasn't Asked About That”

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No, I still hold that "fair use" doesn't include ALL of books.

Google actually has the entire books in question online, right? Yes, perhaps only a page at a time is available, but it’s GOT the whole all the time, even if just at the ready, and that moves it from snippets and quotes clearly beyond fair use.

Besides that, of course I don’t want mega-corporation Google “monetizing” what it hasn’t put any money or effort into creating. — Hasn’t even bought ONE of the books as libraries must! — Google is a corporation, not a person. The effects of finding this “fair use” are society wide, and Google is in monopoly position to gain money from it. — And Google keeps all its money off-shore, out of taxation, as much as possible NOT participating in the society that allows it. Google is a BAD corporate citizen, doesn’t deserve to dip into the public realm.

cpt kangarooskisays:

Re: No, I still hold that "fair use" doesn't include ALL of books.

No, I still hold that “fair use” doesn’t include ALL of books.

There’s no reason why it can’t. In the Betamax case, fair use included copying all of a work. And in the Diamond Rio case, fair use included copying all of a work as well. Amount and substantiality is merely one factor in a fair use analysis and not determinative all by itself.

Besides that, of course I don’t want mega-corporation Google “monetizing” what it hasn’t put any money or effort into creating. — Hasn’t even bought ONE of the books as libraries must!

So? Monetizing fair uses is also perfectly legal (see the Pretty Woman case) and in any case, they’re using the copies that the libraries paid for or were given, so it’s not as though anyone is pirating here.

As for Google’s corporate nature, tax avoision, etc. that’s not relevant to copyright law. By all means, let us crack down on Google’s bad behavior, but you, you baby, want to throw the baby out with the bath water. What’s the cause of your irrational beef with Google anyway? Did they kill your parents or something?


…and that moves it from snippets and quotes clearly beyond fair use.

Fair use isn’t based solely on the quantity of the work used. An entire work can be used and still could be ruled fair use.

The rest of your comment is your usual anti-Google crap. It’s getting kinda boring really. Maybe you need find a new and improved nefarious villain to blame the world’s problems on.


It’s quite interesting how Google is trying to have it both ways. On the one hand, it’s arguing that the fair use issues are uniform so that if it’s fair use for one then it’s fair use for all. On the other hand, it’s arguing that whether it’s infringement for each book requires a case-by-case determination that defeats class certification.

It takes a good lawyer to argue such fundamentally opposed positions simultaneously. Good job! Gotta love lawyers!



Well, this is part of the problem. They want to get a decision that the entire project is fair use. But if they cannot get such a decision, they would want to argue that whether it is fair use depends on the exact amount available to the public. They have to preserve their backup argument so they can use it if the first one goes against them.

I think it does make sense to hold off on certifying the class until the defendant knows whether they can use a general defense or will have to use specific ones (because if they have to use specific ones, the class should not be certified.)


Re: Re:

The only way they’d get a determination that the entire project is fair use would be to litigate the case as a class action, right? Otherwise, the court would only look at the specific works at issue. And that was my point. Arguing that the affirmative defenses cut against certification (since, e.g., it means that individual issues predominate under Rule 23(b)(3)) is fine, but then they are limiting the scope of whatever fair use victory they score down the road.

Re: Re: Re:

Not necessarily. If a defense is sufficiently general, it may not matter how many plaintiffs there are or how they’re grouped. Take a set of plaintiffs claiming that my company was responsible for the food poisoning they got from bad cold cuts and they want it certified for class action. My defense is “My company doesn’t make cold cuts of any sort, we don’t distribute them, and our shipments never have any in them.”. If that defense is valid, then there’s no need to litigate either as a class or individually.


Re: Re: Re: Re:

I get your point, but I think that fair use is classically decided on a case-by-case basis. I’m not sure that fair use for one book would carry over to fair use for another book. But maybe with a project like this it would, though, since the use is basically the same no matter what book it is. Food for thought.

Re: Re: Re:

The only way they’d get a determination that the entire project is fair use would be to litigate the case as a class action, right? Otherwise, the court would only look at the specific works at issue.

No, that’s not really true. The use of a work is what is important when considering fair use. It matters little which work was the raw material for that use.

Let’s say Google’s use of a book is fair use. If that use is the same no matter what the book – and in this case, it is – then it is most likely fair use for all books.

fair use, and its limits

The scanning, indexing and display of snippets seem likely to be declared fair use, given case law. If that had been all that they were doing, I doubt that anyone would have bothered with a class action suit.

But, you see, Google NEEDED to be sued, and to get a clear ruling, so that it could placate investors and banks, and reassure everyone that it was on the right side of the line.

So Google added layers until someone sued. First, they gave all the scans back to the libraries, so that they could lend them simultaneously to as many patrons as they liked. (Which has Google distributing a copy, and which is CREATING lots and lots of unpaid for copies.)

Then, when that didn’t make deep pockets take them to court, they started selling copies of these books WITHOUT PERMISSION. This money would, allegedly, go to the rightsholders, if they figured out how to register for it, and that their books were included. THAT is a clear and obvious violation, and was, I believe, intended to force publishers and authors to go to court. It worked.

I think we’ll see that Google’s REAL interest (scan for search) will be declared fair use, and many of the other things it’s doing will be declared not fair use, and then Google will promise to stop, and the suit will vanish.

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