Judge Blocks Google's Divide-and-Conquer Strategy in Big Copyright Cases

by David Walker

A federal court judge has ruled that the Authors Guild and the American Society of Media Photographers have standing to sue Google on behalf of their members to try to stop the Google Books program. The trade associations have filed two separate lawsuits on the grounds that Google is copying millions of books without permission, in violation of copyright law.

The interim ruling in the case, issued today by federal judge Denny Chin for the US District Court in New York City,? also cleared the way for Authors Guild members to press their case as a class action lawsuit, which Google had tried to prevent. The individual authors are seeking damages for violation of their copyrights. (ASMP has not yet sought class action certification for its lawsuit.)

The ruling is a procedural decision, not a final ruling on the merits of the case. But it is important because it effectively blocks Google from using a divide-and-conquer strategy to defeat the claims of the plaintiffs.

"The impression I had at the hearing was that Google was saying, 'Bring it on as 10,000 individual cases,' because they know full well that individuals are not going to bring these cases because they don't have the means," says ASMP executive director Eugene Mopsik.

Not only does the ruling enable all the plaintiffs to continue suing Google with strength in numbers, but it affirmed that trade associations have standing to pursue copyright claims on behalf of their members, Mopsik says. "That obviously has implications for this case, but also for future copyright cases."

Google was originally sued by the Authors Guild in 2005 on the grounds that its Google Books program violated federal copyright law. Under the program, Google has scanned more than 12 million books--many of them still under copyright protection. The search engine company makes snippets of the books available in search engine results.

Google maintains that its use of the book content is protected by Fair Use provision of copyright law. The Authors Guild and many of its members dispute that. They reached a settlement agreement in 2009 that would have allowed authors to opt out of the program, but that settlement was finally rejected in 2011 as inconsistent with the permission requirements of copyright law. The judge in the case indicated that a settlement agreement had to be opt in (rather than opt out) to comply with copyright law. Google has rejected that as too cumbersome, so the Authors Guild suit has continued.

Meanwhile, ASMP filed a separate lawsuit against Google in 2010 on behalf of its members, after the judge told ASMP it couldn't join the Authors Guild lawsuit.

Last year, Google filed a motion to bar the two trade associations in both cases from participating in the lawsuits, on the grounds that they weren't the copyright holders being harmed.

But the judge ruled that the trade associations have standing in the cases because they satisfy three requirements established by case law:? Their individual members have standing to sue; the interests that the trade associations are trying to protect are germane to their purposes as trade associations; and neither the claim asserted (that the Google Books program violates copyright) nor the relief requested (a court declaration that the program is infringing, and an injunction to stop the program) requires the participation of the individual members of the trade associations. (The trade associations are not seeking monetary damages for infringement--only individual copyright holders are able to seek damages.)

In rejecting Google's motion to prevent individual authors from suing as a group rather than individuals, the court said the authors met all the requirements for filing a class action lawsuit. Google tried to argue that not all authors oppose the its Books program, so the authors filing suit didn't meet the class action requirements because they're not representative of all authors. But the judge said that argument was without merit because the plaintiffs could sue as a class without harming the interests of authors who approve of Google Books, and aren't involved in the lawsuit to stop it.

Related:
ASMP, Other Trade Groups Sue Google
Federal Judge Rejects Google Settlement. Should Photographers Care?

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