The US Court of Appeals for the Second Circuit this morning allowed Google to appeal a May ruling that let the Authors Guild go forward with a copyright class action over Google’s unauthorized book scanning.
The significance of the 2nd Circuit’s order is that the current proceedings, which have been heating up, will likely be suspended while the appeals court decides whether the class action should have been allowed to go ahead in the first place. The appeal will go before a panel of two judges after Judge Denny Chin recused himself on the grounds that he is still involved in the original case.
The decision to let Google appeal the certification order effectively takes the case out of the hands of Chin until the appeals court rules. Chin has been skeptical of many of Google’s positions so far.
The appeal will result in one of two outcomes. In one scenario, the Second Circuit could agree with Google that the class of authors shouldn’t have been certified in the first place. This would effectively put an end to the long-running case. In the alternative, the appeals court could uphold Chin’s decision to certify the class and return the case to him with additional guidance about what he should do next.
The appeals court and Chin are in a bit of an awkward spot because Chin is now also a member of the Second Circuit — the same court that is assigned to review Chin’s original decisions. (The situation came about because Chin maintained control of the original Google case after he was promoted in 2010).
Since the long-running Google Books case was destined to end up before it eventually, the Second Circuit likely decided to hear the class certification appeal in order to telegraph its ultimate intentions. Its ruling will thus either end the case or provide Chin with a possible playbook about how to handle it going forward.
Until today, Google and the Authors Guild have been sparring over cross motions for summary judgment — arguments that the case can be decided without a trial. Google says its scanning activities, which saw it create digital copies of more than 20 million books, amount to a fair use that didn’t result in any economic harm to authors. The Authors Guild, which first sued Google in 2005, claims that the company violated copyright and should pay $750 for every qualifying book.
As we wrote last week, recent reports that Google could be liable for billions of dollars are almost certainly overstated. The class of writers covered by the Authors Guild lawsuit is relatively small in relation to the number of books scanned, consisting of only those authors who registered their work with the copyright office and who are not involved in Google’s Partner Program.
The current court proceedings came after the Authors Guild last December fired up its original lawsuit from 2005. The lawsuit was on hold for years after Google, publishers and the Authors Guild hashed out a three-way settlement that would have created a market for many of the out-of-print books that Google scanned. After Judge Chin blew up the proposed settlement in March of 2011, Google and the publishers have been crafting a series of bilateral deals while the Authors Guild decided to press its original claims of copyright infringement.
Neither Google nor Authors Guild lawyer Michael Boni immediately responded to email requests for comment.
Here is today’s order: