Tuesday, July 02, 2013

Fair Use Google?

Judge Denny Chin doesn't move so fast. His current colleagues on the second circuit, of which one is considered a fair use scholar, may have forced him to push the Google Books case a long a little quicker than he has in the past.

As you may have heard by now, the second circuit has determined that it was premature of Judge Chin (now a colleague) to confirm class status to the case The Author's Guild had brought against Google as a result of their book scanning program. This is clearly Google's victory for several reasons. Firstly, they will get to argue the fair use case which - aside from settling - is what they've always wanted to do and where they expect an outright win. Second, the Author's Guild now has far less expectation for a large pay out but probably crippling legal expenses should they continue.

Copy of the Second Circuit decision
Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class
—  an argument which, in our view, may carry some force — 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, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact, (denying plaintiffs’ request for class certification “because of the fact-specific inquiries the court would have to
evaluate to address [defendants’] affirmative defenses [including fair use of trademarks]”); 
Moreover, we are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand. Accordingly, we vacate the District Court’s order of June 11, 2012 certifying plaintiffs’ proposed class, and we remand the cause to the District Court, for consideration of the fair use issues
Michael Boni, the lead lawyer for The Authors Guild was quoted by Reuters as saying they are going to litigate fair use and 'that is the shooting match'.  Good luck with that.

In March 2011, Judge Chin dismissed a proposed settlement between publishers, authors and Google which was valued at $125mm saying it raised (or didn't address) some important copyright issues and questions.

So, this decision bounces the adjudication back to the district court so they can address the fair use issue and Judge Chin who currently sits on the second circuit but held on to this case when he moved up.  Will he continue to hold on to the case or will be finally decide to hand it over?

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