Appeals Court Deals Blow To Authors Guild In Battle Against Google

Siding with Google, a federal appeals court has ruled that the Authors Guild may not proceed with its class-action lawsuit until a judge decides whether Google's book-scanning project is protected by fair use principles.

The appellate ruling vacated a 2012 decision by Circuit Court Judge Denny Chin, who granted the Authors Guild class-action status.  “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 three-judge panel wrote in its decision, issued Monday.

The appeals court returned the case to Chin, with instructions to rule on whether Google has the fair use right to make digital copies of copyrighted books and then display snippets of them in search results.

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The decision is the latest development in the Authors Guild's long-running legal battle with Google. The authors' organization initially sued Google in 2005, alleging that the company's digitization project infringed copyright. After several years of litigation, the Authors Guild and Google reached a settlement that would have allowed Google to create a new book registry and sell digital downloads at prices it sets with the registry.

But Chin rejected that deal due to antitrust concerns. The Authors Guild subsequently asked for the lawsuit to be certified as a class-action. The association says it is seeking damages of $750 per book for each copyrighted book that Google scanned.

When Chin granted the Authors Guild class-certification last year, he ruled that it wouldn't be fair to require writers to sue Google individually. Google appealed to the 2nd Circuit, asking that court to vacate the class-certification order. Among other arguments, Google said that many writers approve of its decision to scan millions of books from public libraries and make them searchable. The tech company argued that many writers benefit from Google Books “because it makes their books more widely known and accessible."

The appeals judges stopped short of explicitly agreeing with Google on that point, but noted in their five-page decision that Google's contention “may carry some force.”

At a hearing earlier this year, some of the appellate judges indicated that they think Google's project is protected by fair use principles. Circuit Judge Barrington Parker said during the hearing that Google's project “has enormous value for our culture.”

He also said it was "common sense" that some authors would benefit by the project.

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