• by Wendy Davis , Staff Writer @wendyndavis, November 12, 2012

The Authors Guild shouldn't be able to bring a class-action against Google for its book digitization project, the company argues in new papers filed late Friday with an appeals court.

Google contends that class-action status isn't appropriate for several reasons, including that individual authors may feel differently than the Authors Guild about the book project. The tech company says that many writers "benefit from the Google Books project and want to see it continue, because it makes their books more widely known and accessible."

The company says the "clash of interests" between the Authors Guild and individual writers should bar a class-action.

The search giant -- which has pressed this argument for months -- earlier commissioned a survey of more than 800 authors about their opinions regarding the project. Most respondents, 58%, said they approved of Google scanning their books, while 28% were neutral and 14% objected. What's more, nearly one in five, or 19%, say they have or would benefit from Google's scans, while 8% said they would be harmed, and 74% said they didn't believe that the project would affect them financially.

Google also says that a class-action lawsuit doesn't make sense because liability will depend on whether it has a fair-use defense. That question can require book-by-book analysis -- though not always. Consider, several weeks ago the Authors Guild suffered a significant defeat in a separate lawsuit against five universities that worked with Google to digitize millions of books. In that case, U.S. District Court Judge Howard Baer in New York ruled that the digitization project is protected by fair-use principles.

The legal dispute between the Authors Guild and Google dates to 2005, when the Authors Guild alleged in court that Google infringed copyright by scanning around 20 million books from libraries and displaying snippets of some of them in its search engine, in response to queries.

U.S. Circuit Court Judge Denny Chin ruled earlier this year that the case could move forward as a class-action. Chin said it wouldn't be fair to require writers to sue Google individually. "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,'" Chin wrote in May. "Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually."

Google appealed that decision to the 2nd Circuit, which agreed to take the case and stayed all trial court proceedings until the class-action question is resolved.

Both sides seem to have a point here. On one hand, it's not realistic to expect individual authors to sue Google one-by-one -- especially given the exorbitant cost of litigation. At the same time, the Authors Guild's bid for class-action status seems problematic given that, at least according to Google, many individual authors support the digitization project.