Summary:

Two weeks after a court gave a green-light to authors and photographers to proceed with a class action over unauthorized book scanning, the search giant has filed an appeal that provides a glimpse into Google’s end game.

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Two weeks after a court gave a green-light to authors and photographers to proceed with a class action over unauthorized book scanning, the search giant has filed an appeal. The filing is the latest twist in the long running case and also provides a glimpse into Google’s end game.

The outcome of the appeal is likely to determine the fate of the more than 20 million books that Google has scanned but that now sit effectively locked up on the company’s servers. The fate of the books has been in limbo since Judge Denny Chin last year blew up a proposed settlement between Google, publishers and the Authors Guild that would have made the books available for sale.

After the settlement collapsed, Google and the publishers have been hashing out bilateral deals while the Authors Guild revived the initial class action lawsuit it filed in 2005. A separate group representing illustrators and publishers joined the case in 2010.

In its appeal, Google is trying the same double-barreled strategy it attempted before Judge Chin. First, it is arguing that the plaintiffs, including the Authors Guild, are not fit to represent an entire class of writers whose works were scanned. Google points to a study to say that many authors are actually pleased with the scanning endeavor and that they should not be pressed into the same lawsuit as those who are unhappy.

Google’s second argument raises a more profound question about copyright law in the digital age. The search giant is arguing that its actions represented fair use — a legal rule that provides immunity for copyright infringement on the grounds that (loosely stated) the benefit of the use outweighs the harm of the  infringement. Google has made this argument all along and many librarians, academics and publishers are eager for a court to address it directly.

The case will now go to the US Second Circuit of Appeals in New York City where Judge Chin now sits after he was promoted during the course of the initial lawsuit. Since Chin is still sitting by designation on the underlying case, he will not be one of the three or more judges to hear the appeal. This might prove favorable to Google as Chin so far has evinced considerable skepticism about Google’s positions.

Google’s appeal filing also coincides with a shift in the company’s rhetorical strategy. In the past, the company has typically issued only terse legal statements but today, in an email statement, a spokesman said:

“Much of the world’s information appears on the printed page, but almost three quarters of the world’s books are out of print and unavailable except to the lucky few who can find old copies in libraries. With Google Books, our goal is make the knowledge contained in books easy to discover and more useful for people.”

This appeal to fairness and spreading knowledge might gain more traction than it did two years ago when Google’s agenda came under fire by dozens of groups led by Microsoft and Amazon who accused the company of aspiring to a monopoly on books.

The story was first reported at PublishersWeekly. A copy of the order can be found here courtesy of James Grimmelmann.

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