June 4, 2012

Seven years after filing, judge says authors’ lawsuit against Google for theft of copyright should go forward

by

Federal judge Denny Chin has issued a written decision granting class-action status to authors trying to sue Google for scanning over 20 million copyrighted books without permission — meaning the case first filed in 2005, then stalled last year when Chin threw out a proposed settlement, can finally get underway.

As a MobyLives story reported last month, the Association of American Publishers, which had also been suing Google, have dropped out to negotiate individual settlements, but the Authors Guild had stuck to their guns. But Google had petitioned the court to make authors sue it one at a time, as individuals, instead of via a class action suit organized by the AG. As we noted then, Google …

 … made the bizarre argument that most writers don’t own their own copyright, no matter that the rights page of most books state rather exactly the opposite. But Google attorney Daralyn Durie told the judge that “Many authors contracted that right away to publishers.” According to the Businessweek report, “Google said in court papers that because the guild doesn’t claim to own the copyrights at issue, it can’t sue on behalf of authors.” None of the news reports explained how Google argued that although authors don’t own their own copyright and so can’t sue as a class action, they somehow have standing to sue as individuals, as Google prefers.

Now, as a New York Times story by Julie Bosman reports, Judge Chin emphatically rejected Google’s argument …

… saying that class action “is the superior method for resolving this litigation.”

“It is, without question, more efficient and effective than requiring thousands of authors to sue individually,” he wrote. “Requiring this case to be litigated on an individual basis would risk disparate results in nearly identical suits and exponentially increase the cost of litigation.”

And that’s not all. As Jeff John Roberts notes in a paidContent report, Chin took apart Google’s argument that “groups like the Authors’ Guild should not be allowed to participate because they are associations, not individuals,” writing in his decision that …

… 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.

As a Publishers Weekly report by Andrew Albanese observed, Chin also noted that “Only when it became apparent, in 2011, that no settlement would be achieved did Google object to the Authors Guild’s participation in the litigation.”

It was, as the headline to the PW report calls it, a “Big Win for the Authors Guild.” And for the rest of the book industry, too — Google will finally have to account for having simply ignored copyright 20 million times. Also, as Roberts points out in paidContent, Chin’s decision could also mean that the question of “fair use” question will also “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.” Google’s defense, he observes, is essentially that what it did is covered by “fair use,” because it only planned to use snippets of the texts it copied in their entirety,

For this author, anyway, that sounds like a burglar saying he only planned to watch the occasional program on the television he stole from my apartment. And as a defense it begs the question of why Google wanted to show those snippets in the first place — so that it could make money, of course. Off the books it copied. That it didn’t have copyright to.

Twenty million times.

 

Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House. Follow him on Twitter at @mobylives

MobyLives