Summary:

In a major development in the long-running case over Google’s unauthorized book-scanning, a federal judge ruled today that groups representing authors and photographers could go forward with a class action.

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In a major development in the long-running case over Google’s unauthorized book-scanning, a federal judge ruled today that groups representing authors and photographers could go forward with a class action.

The ruling is a setback for Google which asked Judge Denny Chin earlier this month to remove The Authors Guild and a photographers’ group  from the lawsuit. Google had also argued that a class action was not appropriate because many authors were in favor of having their works appear in the company’s search results.

Chin’s ruling means the stage is now set for a trial on whether Google’s decision to scan millions of books amounted to fair use under copyright law. This fair use question has triggered passionate debate among lawyers and scholars, and reflects Google’s position at the time it was sued by the Authors’ Guild and a consortium of publishers in 2005.

“This is a key ruling for all U.S. authors whose literary works have been appropriated by Google,” said Paul Aiken, Executive Director of the Authors Guild.

Google appeared unfazed by the ruling.

“As we’ve said all along, we are confident that Google Books is fully compliant with copyright law. Today’s decision doesn’t determine the underlying merits of the case, nor does it resolve the lawsuit,” said a Google spokesperson.

The original lawsuits from 2005 were on ice for years as Google, the Authors’ Guild and publishers hammered out a massive settlement that would have paved the way for selling millions of out-of-print titles that now languish on library shelves. The settlement collapsed last March after Chin found it was a “bridge too far” and amounted to a business arrangement more than a traditional class action.

Since the deal imploded, the authors and publishers have gone separate ways. While the latter have quietly been signing bilateral agreements with Google, the Author’s Guild decided to resurrect its case from 2005. Last year, the American Society of Media Professionals filed their own class action suit on behalf of photographers and illustrators.

In his ruling today, Judge Chin addressed two key objections brought by Google to argue the case shouldn’t go forward. The first objection was that groups like the Authors’ Guild should not be allowed to participate because they are associations, not individuals. Chin shot this down, saying:

the Authors Guild has played an integral part in every stage of this litigation since its inception almost seven years ago. … Furthermore, given the sweeping and undiscriminating nature of Google’s unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually.

Chin also rejected Google’s argument that a class action was inappropriate since a survey of authors showed that 57% “approved” of appearing in Google’s search results. Chin said that this not disqualify the remaining unhappy authors from suing together, adding that, “it is possible that some authors who “approve” of Google’s actions might still choose to join the class action.”

All of this doesn’t mean that Google is guilty of copyright infringement. What it does mean is that it is even more likely that the big fair-use question could get its day in court. Fair use allows people to use copyrighted material in certain situations such as research or reporting without having to pay the author. The rule is critical for sharing knowledge and creativity but scholars and lawyers are torn about where to draw the boundaries.

Google argues that, under a four-part test, its activities are fair use, especially as it displayed only snippets of the work and not the whole book.

A copy of the ruling, which was first reported in a tweet by James Grimmelmann, is below:

Judge Chin on Google May 31 Copy

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