- Judge Chin certified a class in the GBS litigation (PDF). He held that the Authors' Guild does have associational standing to represent its members (not a surprise); he held that fair use, if nothing else, can be determined with reasonable facility on a group basis, even if not necessarily class-wide; and he held that Google's objections that determining who owns the respective rights in particular works, for the purpose of predominance of the common issue, is a defense that Google may raise on the merits... but does not prevent class certification.
There's a subtle restatement of the merits inquiry in Judge Chin's opinion that
Specifically, every potential class member has allegedly been injured by Google's Library Project, whereby Google, without authorization, copied books in which the class members own copyright interests. Whether Google's actions constitute an infringement of these copyright interests and whether Google's use of "snippets" of these works constitutes "fair use" are "common questions" capable of class-wide resolution.
(slip op. at 26) This parallels the restatement of the copyright theories — distinct from those in the complaint — that I suggested at the beginning. That is, the very copying of the works to "prepare" them for the "Library Project" was a violation in and of itself — a theory that not invoked in the AG's various complaints. It will certainly be interesting to see how this plays out...
- On another copyright aspect of the faceoff between Google and Oracle, Judge Whyte ruled that the Java APIs are not copyrightable. Oracle America, Inc. v. Google, Inc., No. 10-3561 (Doc. 1202, 31 May 2012) (PDF). He has thus, as a matter of law, overruled the jury' verdict, for which it was instructed to assume copyrightability because that was a matter of law still being considered by Judge Whyte. If the material wasn't copyrightable in the first place, the jury's finding that what was copied "infringed" Oracle's code is meaningless.
I'll have more to say on these in the next few days. The last day of may 2012 has proven to be a very mixed day for Google...