(CN) – A federal judge certified a class action that claims Google failed to get permission before copying and digitizing works still under copyright.
In a 2005 complaint, the Authors Guild claimed that Google had reproduced in-copyright books, distributed them to libraries and excerpted those works for online search results. Claiming that Google was “engaging in massive copyright infringement,” the representative authors sought class certification.
Google has scanned more than 12 million books since 2004, when it made an agreement to digitize works from major research libraries, according to that complaint, which says many of those books are still under copyright.
Several publishers also sued Google independently.
After three years of negotiations, Google, the authors and the publishers reached a much-disputed settlement.
Rejecting approval of that deal, 2nd Circuit Judge Denny Chin called it “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court.” Chin heard the case in the Southern District of New York by designation.
Google was hit with another class action in 2010, this time from individual photographers and graphic artists joined by the American Society of Media Photographers and other professional associations of photographers. This complaint claimed that Google had also infringed on their copyrights by reproducing their visual works in digitized books.
Though Google had asked the court to dismiss the associations as plaintiffs for lack of standing, Chin refused last week.
Neither their claims for copyright infringement nor the sought-after injunction requires each individual association member to participate in the lawsuit, the judge found.
Copyright holders will not have to prove their ownership individually, because copyright information is available publicly, Chin wrote. What’s more, Google does not dispute that it copied millions of original works without the copyright holders’ permission.
Some members who still receive royalties despite having transferred their copyrights may have to prove that they retain interest in their works, but this degree of individual participation does not defeat associational standing, the order states.
Chin noted that forcing authors to sue individually would be “burdensome and inefficient,” especially since the associations seek only injunctive relief against Google.
“Furthermore, given the sweeping and undiscriminating nature of Google’s unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually,” Chin wrote. “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.’ It copied and made search results available en masse. Google cannot now turn the tables and ask the court to require each copyright holder to come forward individually and assert rights in a separate action.”
Chin certified the proposed class, noting that it is likely to include thousands of authors.
He rejected Google’s argument that the class does not adequately represent all authors, some of whom may perceive Google’s copying of their work as a benefit.
“Indeed, Google has not pointed to any legal or factual argument made by the lead plaintiffs that would undermine the copyright claim of any other class member,” Chin wrote.
“Second, that some class members may prefer to leave the alleged violation of their rights unremedied is not a basis for finding the lead plaintiffs inadequate.”