Google's long-running battle with the Authors Guild took another turn this week, when the search giant filed
papers with a federal appeals court arguing that the authors group shouldn't be allowed to proceed with its copyright lawsuit over the book digitization project.
The lawsuit, filed in 2005,
challenges Google's program of scanning in library books and making snippets available to searchers. The Authors Guild says this program infringes copyright; supporters of the program say that Google
is enabling people to find and potentially purchase books they might not otherwise have known about. (Google and book authors reached a settlement, but it was scuttled by Judge Denny Chin last
year.)
In a motion made public today, Google seeks permission to appeal a pro-Authors Guild ruling issued late last month by Chin in New York. He said the case could proceed as a class-action,
and he certified a class of all author whose books were copied by Google; he also said that three members of the Authors Guild could serve as representatives of the class.
Google argues that
decision was wrong for two reasons -- that many authors approve of the digitization program, and that copyright infringement claims require individual decisions about fair use.
Google argues
that results from a survey it commissioned proves that the Authors Guild didn't speak for all copyright holders. That survey of more than 500 authors showed that 58% approved of the scanning project,
and that 19% said they felt they had benefited (or would benefit) from Google's display of snippets.
But Chin said that survey didn't address the question of whether authors wanted to pursue
litigation against Google. "It is possible that some authors who 'approve' of Google's actions might still choose to join the class action," he wrote. He also said that individual authors who didn't
want to sue could opt out of the case.
Google says that analysis was flawed. Chin "thought of this simply as a case where some authors want to press their legal claims and others do not, but
that was wrong," Google argues. The company adds that the problem with allowing the three Authors Guild members to represent a class is that those members' "objective is to dismantle a project that
benefits many or most other class members."
Google also presses its point that questions of fair use require case-by-case decisions, and can't be decided "through an all-or-nothing classwide
analysis.
Arguments aside, the papers that were filed this week reveal another new tidbit: Google has enlisted former solicitor general Seth Waxman to represent the company in the matter.
Waxman recently represented ABC at the Supreme Court in a pending case challenging the Federal Communications Commission's policy regarding indecency on TV.