Authors Guild, Inc. v. Google Inc.
721 F.3d 132
2d Cir.2013Background
- Plaintiff-authors filed suit in 2005 alleging Google copied and displayed snippets from over 20 million books via the Google Books Library Project. The district court considered and denied the proposed class settlement; then granted class certification for a nationwide author class under Rule 23.
- Google anticipated asserting a fair use defense, which could moot or affect the litigation, potentially influencing class certification.
- The district court certified a class of U.S. copyright holders who own books reproduced by Google and are authors, heirs, or assigns, excluding certain participants.
- Google challenged the class certification, arguing that fair use below merits review and that class treatment may be inappropriate due to individual issues and interests.
- This panel vacated the certification as premature absent a merits ruling on fair use, and remanded to the district court to address fair use before considering class certification again.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether class certification was premature without ruling on Google's fair use defense. | Authors Guild argues certification should proceed while merits are unresolved. | Google contends fair use and individual questions preclude class treatment. | Premature; vacate and remand for fair use ruling. |
| Whether fair use issues dominate common questions to support Rule 23(b)(3) predominance. | Common questions predominate due to shared infringement theory. | Fair use requires case-specific, individualized analysis. | Fair use ruling on remand will inform predominance. |
| Whether individual protections and interests undermine adequacy of representation. | Class members may have divergent interests; some may oppose plaintiffs. | Representational adequacy not resolved without merits. | Addressed via remand after fair use determination. |
| Whether the court should delay certification pending merits to avoid potentially moot issues. | Delaying certification preserves efficiency and may avoid duplicative efforts. | Mootness risk if fair use defeats the action. | Remand to resolve fair use before any renewed class certification. |
Key Cases Cited
- Coopers & Lybrand v. Livesay, 437 U.S. 463 (U.S. 1978) (merits-intimate questions in class certification dependent on merits)
- Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (understand claims, defenses, facts, law to determine certification)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (class cannot be certified on assumption defendant will not raise defenses)
- Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. 2001) (four-factor fair use analysis context for reference)
- Hearth Admins., Corp v. City of New York, 394 F.3d 382 (2d Cir. 2012) (considerations of public policy in class and merits issues)
- Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (affirmative defenses may require individual resolution)