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IP/Entertainment Case Law Updates

The Authors Guild v. Google, Inc.

District court grants class certification to group of authors in copyright infringement action against Google, Inc. and recognizes standing of organizations asserting claims on behalf of members, concluding that Google’s plan to digitize millions of books raises common questions and entitles copyright holders to litigate on a group basis.

As part of its “library project,” defendant Google, Inc., scanned over 12 million books, delivered digital copies to libraries, created an electronic database of books, and made excerpts available for online searching and viewing. Millions of the books scanned by Google were still under copyright, and Google did not obtain permission to scan the books. In 2005, the Authors Guild and three representative plaintiffs brought a class action, alleging that by reproducing in-copyright books, distributing them to libraries, and publically displaying “snippets” of those works for search, Google “is engaging in massive copyright infringement.” In 2010, several individual photographers and illustrators brought another class action charging Google with copyright infringement, alleging that Google’s copying of certain photographs, illustrations, and other visual works infringed on their copyrights as well. Google asserted “fair use” as its principal defense in each of these actions. The representative plaintiffs in the first action moved for class certification and Google moved to dismiss all associational plaintiffs for lack of standing. The court denied Google’s motion to dismiss, finding that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The court granted plaintiffs’ motion for class certification, finding that plaintiffs satisfied the numerosity, commonality, typicality, and adequacy requirements under Rule 23, and the questions of law and fact common to class members predominated over any questions affecting only individual members.

The court initially addressed Google’s motion to dismiss the claims of the associational plaintiffs for lack of standing. An organization has standing to bring suit on behalf of its members, instructed the court, when (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Google did not dispute that the organizational plaintiffs satisfied the first two prongs under the court’s test. With respect to the third prong, the court explained that the association may be an appropriate representative of its members so long as the nature of the claim and the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause.

Google argued that the associational plaintiffs in the two actions do not satisfy the third prong because the association did not itself hold any copyrights and because its fair use defense would require the participation of individual association members. Specifically, Google contended that the 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, required individualized inquiry. The court disagreed, reasoning that, in light of the commonalities among large groups of works, individualized analysis would be unnecessarily burdensome and duplicative. The differences among the plaintiffs could be accommodated by grouping association members and their respective works. The court also noted that no individual participation would be required at the relief stage because the associational plaintiffs sought only injunctive relief and no individual damage assessments would be necessary. Finally, the court held that because Google treated the copyright holders as a group, indiscriminately copying and making search results available en masse, the copyright holders should be able to litigate on a group basis.

On plaintiffs’ motion for class certification, the court concluded that plaintiffs’ class satisfied the numerosity and commonality requirements of Rule 23(a). The class likely would number in the thousands because Google had scanned millions of books. The issues of whether Google’s actions constituted an infringement of plaintiffs’ copyright interests and whether the company’s use of “snippets” of plaintiffs’ works constituted fair use were common questions capable of class-wide resolution, according to the court. Similarly, the court found that the proposed class satisfied the typicality requirement because each class member’s claim arose from the same course of events—Google’s wide-spread copying of books without the authorization of copyright holders.

The court rejected Google’s contention that the class could not satisfy the adequacy factor, which requires class representatives to fairly and adequately protect the interests of the class. Google argued that most class members perceived Google’s copying of their work as a benefit, pointing to a survey reporting that 58 percent of authors approved of Google scanning their work for search purposes and that 19 percent felt that they benefited financially. The court found this argument lacked merit for two reasons. First, Google could not point to any factual or legal argument made by the lead plaintiffs that conflicted in any way with the copyright claims of any of the other class members, and the court could not conclude from the survey (which did not ask respondents whether they would want to be part of a lawsuit through which they might recover damages) that any individual author would not want to participate in the instant class action. And second, that some class members may prefer to leave the alleged violation of their rights unremedied, reasoned the court, could not be a basis for finding the lead plaintiffs inadequate. The court’s sole concern was whether the lead plaintiffs were interested enough to be forceful advocates and whether any reason existed to believe that a substantial portion of the class would agree with their representatives were they given a choice.

Finally, the court found that class certification was warranted because the proposed class also met the predominance and superiority requirements of Rule 23(b)(3). The common issues in the litigation – whether Google’s library project constituted copyright infringement and whether Google’s fair use defense applied – predominated over individual ones. Every potential class member’s claim, according to the court, arose out of Google’s uniform, widespread practice of copying entire books without permission of the copyright holders and displaying snippets for search. Similarly, as noted, the question of fair use could be evaluated on a sub-class-wide basis. The court would determine whether the defense applies to a particular type of book, obviating the need to evaluate each book individually. With respect to the superiority requirement, the court concluded that class action was the superior method of resolving the litigation because it was, without question, more efficient and effective than requiring thousands of authors to sue Google individually.

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