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.