01 July 2013

GBS Class Certification Sent Back for Reconsideration in a Different Order

The Second Circuit has rejected class certification in the Google Book Search suit (PDF), at least for the present, and sent the matter back for further proceedings on fair use. Having been one of the snider, and perhaps louder, voices on class structure as a problem, I'm heartened by the explicit acknowledgment that there are problems with adequate representation. More to the point, the way this was sent back demonstrates just how badly structured this lawsuit was in the first place.

I'll have more to say later in the week after the sekrit project goes live, but for now I commend you to this thought: Since there is no publishing industry — only the bastard offspring of a three-century-long orgy among thirteen distinct industries — what's the "right" (or at least a defensible) way to structure resolution of a very real problem, and then consider the underlying facts? Yes, it is via a class-like device... but it's not this lawsuit. Of course, there may be more than one way to do it... but, again, not via this lawsuit (with these parties and counsel).

The key thing is this: The Court of Appeals did not actively reject Judge Chin's analysis; it said that he did his heavy lifting in the wrong order. However, the way that he did his heavy lifting in the wrong order is going to have some interesting consequences!