More Thoughts on Class Certification
As I noted last night, Judge Chin certified a class in the main GBS proceeding yesterday.27 He also confirmed that the Authors' Guild and the American Society of Media Photographers may continue to participate directly in the litigation through associational standing (in which they represent their members... but that's not the same thing as class litigation). However, while his opinion resolves many issues on the record before him regarding Google's conduct and the appropriate means of litigating challenges to that conduct, it also raises some new ones. The most critical of these issues — and most interesting at the intersection of copyright law and civil procedure, at least to nerds like me — is that this class certification just moves the goalposts on class matters; it is not a final decision.
To understand why this is not a definitive class certification decision, we have to do something that is discouraged by the concept behind class certification: We have to go into detail on the merits. This is never an easy thing to do. Although class certification is supposed to be independent of the merits, it almost never is. In this instance, Judge Chin has made it quite clear that at least some aspects of making this a class matter remain to be resolved:
Every potential class member's claim arises out of Google's uniform, widespread practice of copying entire books without permission of the copyright holder and displaying snippets of those books for search. Whether this practice constitutes copyright infringement does not depend on any individualized considerations. Furthermore, the question of "fair use" may be evaluated on a sub-class-wide basis. The Court would determine whether the defense applies to a particular type of book, obviating the need to evaluate each book individually.28
What Judge Chin is suggesting makes a great deal of sense, and recognizes that — although not all books are identical, as Google argues in opposing class certification — the combination of Google's uniform policy of not making any individualized inquiry into fair use29 and the prospective ability to divide the books scanned by Google into subclasses for evaluating fair use allows this matter to proceed as a class. The problem this raises — one not dealt with in Judge Chin's opinion, nor briefed by the parties — is not representation of the class as a whole; it is representation of the subclasses.
On this last point, part of the problem is that Judge Chin is in (and, for that matter, now sits on) the Second Circuit. The Second Circuit's interpretations of subclass representation are sparse and muddled.30 It's not that things are perfect elsewhere — just that they're unusually muddled in New York, Connecticut, and Vermont. Even the parts of the Marisol A.31 opinion relied upon so heavily by Judge Chin for general propositions concerning class litigation and subclassing are, at best, less than clear (and arguably mere dicta) on representation requirements for the subclasses... and, in any event, did not present the issue here.
And that issue matters, as the Supreme Court long ago made clear. In the seminal Nation Enterprises case,32 the Supreme Court held that copying a passage of approximately 700 words from President Ford's forthcoming doorstop-length memoir exceeded the bounds of fair use... because that passage constituted the "essence" of the book, concerning as it did President Ford's decision to pardon President Nixon. Consider, conversely, what constitutes the "essence" of William Styron's Sophie's Choice, or of Joan Vinge's The Snow Queen (both roughly contemporaneous with Ford's memoirs)... if, that is, there is an "essence" to a book-length work of fiction, still less a collection of shorter works such as John Cheever's short stories. Then, too, there's the question of how much of a work of fiction that engages in substantial world-building (like the Vinge or, ironically enough, Turow's Presumed Innocent) versus a more-grounded work like the Styron.
My point is that the three persons put forth by the Authors' Guild in this particular class certification effort simply cannot represent each potential subclass for which fair use will be considered. Those subclasses, however, are just that at the moment: Potential. We — and Judge Chin — are simply going to have to revisit class certification for the subclasses when the subclasses become better defined in this matter concerning typicality of claims and adequacy of representation. Unfortunately, Judge Chin's opinion does not make this clear... even if the recent decision in Muchnick33 makes these considerations absolutely necessary.
Then, too, there's the orphan works problem hanging behind the subclassing. Judge Chin has, quite logically, proposed subclassing based on the nature of the works. This has the potential to work for the fair use analysis, but unless it results in a uniform finding as to virtually all of the subclasses — and Nation Enterprises implies that it cannot, unless that finding is "copying the entire in-copyright book-length work is never fair use," which is consistent with (but not demanded by) existing case law34 — it may still require subsubclassing-out the orphan works, which may still leave a substantial part of Google's scanning effort unchallengeable. Now throw in those rightsholders not participating in the classes at their respective options35 and we have the very real specter of obtaining a judgment against Google that is over a relatively small portion of its scanning program... and therefore may (and, in this age of quantitative management imperatives, will) be treated as yet another cost of doing business.36 And that's an ethical quandary which, when combined with the relative predictability and relatively low per-work cap on statutory damages, should concern authors.
- Authors' Guild v. Google, Inc., No. 058136 (S.D.N.Y. Doc. 1023, 31 May 2012), consolidated with American Soc'y of Media Photographers v. Google, Inc., No. 102977.
- Id., slip op. at 2930 (emphasis added).
- Id., slip op. at 18: ("When Google copied works, it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting 'snippets' of a particular work would constitute 'fair use.'")
- Compare, e.g., Stephenson v. Dow Chemical Co., 273 F.3d 249 (2001), with In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 29091 (1992).
- Marisol A. v. Giuliani, 126 F.3d 372 (1997).
- Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539 (1985).
- Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010). Note, too, that Muchnick arose from the Second Circuit...
- However, this is not consistent with the theory of infringement either stated in or fairly implied by any version of the complaint put forth by the Author's Guild. See my previous discussion of the merits theories and Judge Chin's implicit endorsement of the distinct theories of infringement, as opposed to the single theory of infringement state by the AG:
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.
Doc. 1023, slip op. at 26. Down the road, this may have implications under Fed. R. Civ. P. 23(g) concerning the adequacy of counsel... but I'm simultaneously getting ahead of myself and pointing at another lacuna in Judge Chin's class certification opinion. For the moment, then, I'll just pretend this is another tangent. It is nonetheless a tangent with at least baby teeth.
- Here, I'm afraid that Judge Chin's most-recent opinion is less clear than it should be. At several points in it, he refers to class members opting out... which is inconsistent with his previous, well-taken concerns when rejecting the proposed settlement that this needs to be an opt-in class if it is a class action at all. Authors' Guild v. Google, Inc., 770 F. Supp.2d 666, 67782 (S.D.N.Y. 2011). We shall have to see how this develops.
- See, e.g., Ben Wojdyla, The Top Automotive Engineering Failures: The Ford Pinto Fuel Tanks (20 May 2011).