The Google Appeal: Is There a Class?

James Grimmelmann -- November 23rd, 2012

The Google Books lawsuit—seven years old and counting—grinds on. In May, Judge Denny Chin certified it as a class action, with three individual authors representing all authors with books scanned by Google. This Summer, Google appealed Chin’s decision, and that appeal is now being considered. On November 9, Google filed its opening brief, and it was supported by a group of library associations and by well over a hundred academics led by Berkeley’s tireless Pamela Samuelson. Electronic Arts, Pinterest, and Yahoo! also indicated they would like to file a brief, but didn’t get their act together in time and have asked for an extension.

Looking down the road, the issue of class certification is a procedural sideshow. The question everyone cares about—is it legal to scan books en masse?—almost certainly won’t be settled this year, and quite possibly not in 2013 either. Meanwhile, as the Google lawsuit plods along, the book industry bounds into digital. Google Books has gone from front-of-store to the backlist, and the publishers have already remaindered their own suit against Google. And, the Guild was soundly trounced in the parallel HathiTrust suit against Google’s library partners. Unless that resounding holding in favor of fair use is reversed on appeal, it may not much matter what happens to the original class action against Google. Still, it’s worth unpacking the issues now before the Second Circuit in the Google Appeal.

So, what exactly is at stake in Google’s current appeal? Google’s first and most fundamental objection to the class action is that the central legal issue—fair use—is simply too book-specific to be resolved in one fell swoop. A three-line snippet is a much larger fraction of a 50-page children’s book than a 500-page memoir; a snippet of a mathematical table may not show any original expression whatsoever. Popular biographies, medical textbooks, scholarly monographs, science fiction novellas, joke books, and teen paranormal romances are all printed on paper and bound, but the similarities stop there. On the other hand, judges intent on making sense out of fair use have been able to draw reasonably clear lines in a reasonably honest way. The judge in the Georgia State e-reserves lawsuit, for example, came up with some straightforward tests: is the book being licensed digitally, did the library make more than one chapter available, and so on. (Of course, that verdict is also being appealed).

Google points to the Supreme Court’s recent decision in Wal-Mart Stores v. Dukes in arguing that it’s entitled to present individual fair use defenses. In the WalMart case, statistical studies showed that female Wal-Mart employees earned less and were promoted less often than male ones. Wal-Mart had no uniform national policy on pay and promotions, so the plaintiffs wanted to argue that the lack of an official policy was itself a de facto policy of allowing local managers to discriminate against women. No dice, said the Supreme Court: those individual decisions by individual managers need to be litigated individually.

But Google—unlike Wal-Mart—does have a uniform policy. It scans books, and it does essentially the same thing with each book it scans. It seems highly unlikely that Google itself considered fair use individually for each book it chose to scan; it seems anomalous to say that wholesale scanning can only be challenged on a retail basis.

A second set of objections to the class action focuses on ownership. Only the “legal or beneficial owner” of a copyright can sue for infringement. For authors of books, this language typically means either that the rights have reverted to the author (legal ownership) or that the author receives royalties (beneficial ownership). In Google’s eyes, proving ownership will require a mini-trial for each book: checking how it was written and what the publishing contract says about digital uses, if anything. The factually ugly issue of who actually owns which rights in which books has been a storm cloud hanging over the publishing industry’s digital transition. Judge Chin’s opinion on the point was cursory; other courts who have faced the issue have found it to be anything but simple.

But matters may not be quite so dire here. The reason is that ownership is a binary threshold issue: either an author is a copyright owner in a book (and thus a class member) or she isn’t. It’s not as though Google has treated authors differently based on what their publishing contracts say. Thus, rather than first compiling a list of all book copyright owners and then asking whether Google has infringed their rights, it would be feasible to flip the order. First ask whether Google has infringed the copyrights of those authors who own their books’ copyrights (we know that there are some); if it has, then figure out which authors are and are not copyright holders.

But courts do that all the time in class actions: it’s called a claims process. If you’re part of a class that was injured because you were exposed to a toxic substance, you’ll need medical documentation before they cut you a check. It seems plausible that the court here could make some simplifying presumptions that are generally likely to be true—such as that a book’s author really is the person named in its copyright registration—while still allowing Google to object to claims where it has specific evidence that the presumptions are wrong. Google’s argument is that even this kind of streamlined process would quickly degenerate into a welter of ambiguous contract terms. A class action simply may not be capable of cleaning up the mess that decades of deal-making have created.

A third set of objections challenge the right of the three named author-plaintiffs—Betty Miles, Joseph Goulden, and Jim Bouton—to represent all authors. In theory, representativeness objections are fixable: just name a more diverse set of lead plaintiffs. But in practice, the Authors Guild has gone to war with the plaintiffs it had. It is not at this late date about to invite Pamela Samuelson to sit down and join the lets-all-sue-Google party. If the class action goes down because the lead plaintiffs aren’t adequate representatives, it’s unlikely to rise again.

Google’s version of this objection is to argue that many authors support Google Books: it helps them with their research, and it helps them market their books. The academic authors’ version is even sharper: academics benefit from having their books widely findable and accessible, wholly independently of whether those books sell more copies. Google has a survey showing that 58% of authors approve of having their books in snippet view; the academics’ brief is signed by dozens and dozens of book authors who would prefer Google to win on the merits.

The question here is simple but profound: who speaks for authors? In one sense, the answer is easy: every author who speaks up speaks for herself. Tell Google to take your book out of Google Books and it will (or so it promises); tell Google to include your book and it will. Neither group needs the clanking machinery of a class action to make itself heard. It’s the great middle—those authors who have neither opted-in nor opted-out—for whom the class action really matters.

All of which means, therefore, that the struggle over class certification is a struggle about defaults. Should J. Random Author be presumed to approve of Google Books or to disapprove of it? If the ayes have it, the class should be de-certified, and those exceptional authors who dislike Google Books should be required to bring suit on their own. If the nays have it, then the class should be certified, and those exceptional authors who like Google Books should be required to tell Google to please use their books.

There is another reason that this conflict within the class matters: crafting remedies. That so many authors (heart) Google Books is a powerful reason for the court to steer clear of an injunction that would have the effect of shutting the whole thing down. Copyright generally recognizes that different authors prioritize different goals: some want artistic control, some want sales, and some want their ideas to be heard. The academics have a point when they argue that the class as currently constituted threatens their interests as authors.

 

6 thoughts on “The Google Appeal: Is There a Class?

  1. Frances Grimble

    Michael,

    You seem to me to accept the premise that books should be mass-digitized and mass-distributed, and the only question is which entity controls that. However, authors who negotiate contracts with their publishers have every right to expect that those contracts will be honored, not overridden by any third party unconnected with the original contract. Authors whose rights have reverted to them, and self-publishers, have every right to expect that their copyrights will remain under their control, not seized by Google, or a committee supporting the rights of readers, or anyone else.

  2. Michael Larsen

    The Last Chance to Prevent a Googleopoly?

    Google will do what is in (its) best interest at all times.
    –Dave Rosenberg, open-source software executive

    What is most dangerous about Google’s attempt to commandeer our literary heritage is that power corrupts. There is far too much power in the hands of fewer people and corporations than ever.

    Former Secretary of Labor Robert Reich reminded us is his March 27th, 2011 column in the San Francisco Chronicle that: “…corporations exist for one purpose and one purpose only – to make as much money as possible….” The actions of Amazon, the leading online bookseller, with customers and publishers have shown how the pursuit of profit can affect decisions.

    Google’s noble goal is to make the knowledge in the world’s 130 million books available to anyone connected to the Web. Thanks to the exploding smartphone market, by the end of the decade, this will include most of the people on the planet. But Google’s equally noble commitment to “Don’t be evil” hasn’t prevented it from happening. Digitizing books in copyright without permission created a firestorm of protest from the writing and publishing community.

    Unless stopped, technology companies, prodded by political, financial, and competitive pressures, will control the culture for which they are the gatekeepers. Our literary heritage should be a library available to all, not just another profit center subject to corporate needs. Access to books is far more important than quarterly dividends. Allowing books to become victims of the corporate imperative will lead to evil being done to readers, writers, students, libraries, and publishers.

    Consider this solution:

    1. Google should seize the opportunity created by U.S. Circuit Judge Denny Chin’s ruling against its plan, because of concerns about copyright, privacy, and monopoly. Empower the publishing community to make decisions about how Google provides access to books. One of the wisest investment Google can make is to finance a nonprofit governing board with the ability to decide how best to balance access and profit in the public interest.

    The board would include a representative from Google, the Association of American Publishers, the American Booksellers Association, the American Library Association, the Library of Congress, the Author’s Guild, the Association of Authors’ Representatives, the American Board of Higher Education, the Electronic Frontier Foundation, the World Intellectual Property Organization, and perhaps other organizations.

    2. Have these organizations elect a member to serve a single two-year term for the part-time position in return for the income the member presently earns plus expenses. The ideal candidates will have integrity, creativity, and a passionate dedication to the public’s right to access books.

    3. Make the board’s monthly meetings transparent: televise them, including who votes for what, and post the text of its meetings on the Web.

    After two setbacks, let us hope that Google will see the wisdom in surrendering control to assure profits. If it does, the courts and the international book community will look more kindly on its efforts.

    Lurking behind this issue are two questions as important as any we face:
    1. How do we grant individuals and organizations enough power to be effective but not enough to be corrupted?

    2. At a time of accelerating change, how do we enable government to solve huge, growing, complex, related problems?

    History has proven Napoleon right: “Humanity is only limited by its imagination.” All that separates conception and achievement are time and resources. Creativity and collaboration across media, disciplines, and borders will continue to unleash a growing torrent of wonders.

    What we desperately need is a new group of founding fathers and mothers to reimagine the American dream and how to achieve it.. Whatever the dream is, books — in whatever form they take — will continue to be an essential part of it.

    Michael Larsen is a partner in Larsen-Pomada Literary Agents, author or coauthor of eleven books, including the fourth edition of How to Write a Book Proposal, and co-director of the San Francisco Writers Conference, http://www.larsenpomada.com, http://www.sfwriters.org.

    Please fee free to share this.

  3. Karen Coyle

    James, there was a certain amount of argument in Google’s brief about their use of snippets, and I’m unclear whether the issue here is digitization, or post-digitization display, or both. Google does make a book-by-book decision on whether it will or will not display snippets, with reference books (dictionaries) and books of short content (poetry, cookbooks) not getting a snippet view. It seemed to me that that in the HathiTrust decision the judge paid more attention to the USE (keyword search, returning page numbers) than to the question of whether the libraries had made copies of the digital files (which seemed to get emphasis in the AG complaint). Are these suits mixing apples and oranges in their arguments? That is, the question of mass digitization v. the question of what use is being made of the digitized material? Or do you see it as a single issue?

  4. Hiram Jones

    The article is slovenly and inaccurate at best, but outright false in many aspects. For example, what the writer calls a “victory” for the infringer Hathi Trust was hardly such; the court’s decision strictly limited Hathi to small snippets. A sharp difference between what Hathi and Google want: the privilege of stealing entire books, and doing so en masse with millions of books.

  5. Frances Grimble

    This essay neatly ignores the whole issue that according to current US copyright law, entities who want to reprint/reissue copyrighted works, or create derivative works from them, must seek permission from the copyright holders *before* making such use of the work. Not force copyright holders to chase all over the place discovering who is reissuing their copyrighted work and forcing that entity to stop, whether by opting out of the entity’s database or by expensively suing the entity. And if the opt-out method is approved by the courts, copyright holders will be forced to chase numerous entities in addition to Google, and in addition to the hundreds of libraries represented by the ever-growing Hathi Trust consortium.

    Therefore, this lawsuit matters for *all* authors. As a copyright holder, I don’t want to be bound by what some survey says 58% of other authors want done with their work, or what they think is fair compensation for reissuing their work. I also don’t want to chase and possibly sue every search engine, library, publisher, and individual who seizes my work without my permission and damages my income as they please till I “opt out.” And I don’t want a contract I carefully worked out with a publisher, defining my rights in the work, to be overturned merely because someone wants to scan my work.

    I need to determine what works for *my* needs. And current copyright law–which does *not* permit mass copying, as determined for photocopies–*does* enable me to do all that. Google’s actions are an attempt to overturn current copyright law in their own favor, not to establish law where there is none. It’s not as if Google has to mass scan books–they created this *problem*,

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