Class A is initially defined as all persons or entities that:
1. Hold the copyright to a literary work that is contained in the library of the University of Michigan; and
2. Have not transferred a license to a third party that would authorize the conduct alleged; and
3. Have not otherwise approved of the conduct alleged consistent with the signed writing requirement of 17 U.S.C. § 204.
Class B is initially defined as all persons or entities that:
1. By contract or operation of law hold a license that would authorize the conduct alleged to a literary work that is contained in the library of the University of Michigan; and
2. Have not otherwise approved of the conduct alleged consistent with the signed writing requirement of 17 U.S.C. § 204.
Can you spot the unconsidered class that has inherent conflicts with both class definitions? Yes, Ms Sanchez? I said that "Not all books are single, complete manuscripts," and that I must be referring to collections and anthologies? Well, Ms Sanchez, you do get a brownie point for doing some research in my blawg, but I'll get back to you later in the session for what that really means. In any event, the key point is that the editor of such a volume—particularly if there is more than one contributor, as in anthologies—has an inherent conflict of interest with the individual(s) who contributed works to it. We could try to define a Class C, perhaps like this:
Class C is initially defined as all persons or entities that:
1. Hold the copyright to a literary work (the "Component Work") that forms part or all of another literary work (the "Composite Work") that is in turn contained in the library of the University of Michigan; and
2. Have not transferred a license to a third party, including without limitation the publisher and/or editor of the Composite Work, that would authorize the conduct alleged; and
3. Have not otherwise approved of the conduct alleged consistent with the signed writing requirement of 17 U.S.C. § 204.
This is starting to look awfully ugly, isn't it? It is marginally manageable with all three classes defined… if, and only if, nobody looks under the surface at the substantive strengths of the claims. All three classes do have claims; however, the strengths are radically different—Class A is a strong copyright claim, Class B is a moderately strong copyright claim combined with a strong interference-with-contract claim, and Class C is a slam dunk under either theory—that each require different kinds of evidence to validate both liability and remedy.
It gets better. Class C should also be divided just like the original class definition was divided into Class A and Class B, for the same reasons. Where things really get interesting is in determining who might be an adequate representative. The Author's Guild cannot be an adequate representative for Class C (or Class D), because its membership consists almost entirely of those who publish at book length only. Further, there's a hidden landmine in the Tasini question for Class C (and Class D): that many, if not most, Composite Works include one or more Component Works that were previously published elsewhere.
If you're not convinced that the only thing certifiable about Author's Guild v Google is the individual who decided that this could be a unitary class action, there is more yet to come—and we haven't even gotten to the substance!