Authors Guild v. Google Inc.
770 F. Supp. 2d 666
| S.D.N.Y. | 2011Background
- Google scanned over 12 million books without copyright permission and built a searchable digital library with snippets available to users.
- The Authors Guild and publishers brought a class action seeking damages and injunctive relief, with Google arguing fair use.
- In 2008-2009 the ASA was negotiated after extensive objections; it was preliminarily approved in 2008 and revised in 2009.
- The ASA would allow Google to continue digitization and commercial uses, with 70% of revenue channeled to rightsholders via a Book Rights Registry.
- A Settlement Fund of at least $45 million was created for cash payments to pre-May 2009 digitized works, with up to $300 per Principal Work overall.
- Class members could opt out; the ASA also proposed a forward-looking framework including orphan works governance, raising numerous objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the ASA fair, adequate, and reasonable under Rule 23(e)? | Objectors allege too wide a release and non-representative class interests. | Settlement negotiated at arms-length with extensive discovery and DOJ input; benefits outweigh risks. | Not approved; ASA not fair, adequate, reasonable due to scope and representation concerns. |
| Does the ASA improperly release claims beyond the pleadings or involve forward-looking business arrangements outside the case? | Release limited to conduct within the asserted dispute; no broader forward-looking rights should be granted. | Settlement integrated past and future uses within a unified framework for digital books. | Second part of ASA exceeds what Rule 23 permits; not within the pleadings' scope. |
| Is there adequate class representation for all affected rightsholders? | Named plaintiffs may not adequately represent the diverse interests of foreign and unrepresented members. | Counsel is experienced; some voices may disagree, but representation is sufficient. | There exists a substantial question of antagonistic interests; representation not adequate. |
| Are the class notices, or the class representation, adequate given objections and opt-outs? | Notice and representation should be sufficient to inform and bind the class. | Notice was extensive (over 1.26 million notices in 36 languages) and publicly accessible. | Notwithstanding broad notice, the class reaction was highly negative; adequacy of notice/representation remains problematic. |
| Would the ASA raise antitrust, copyright, privacy, or international-law concerns sufficient to reject the settlement? | Settlement could create de facto monopolies, expropriate rights, and violate international norms. | Settlement appropriately balances interests; concerns can be addressed by opt-in alternatives and safeguards. | Overall concerns (antitrust, copyright, international law) contribute to denial; no resolution of those issues in current form. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) (Grinnell factors guide settlement review; arm's-length negotiation is favored)
- City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974) (original Grinnell framework for evaluating settlements)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (S. Ct. 1997) (limits on class-wide relief and scope of releases)
- In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995) (notice and reaction in large class actions considered in evaluating settlement)
- Firefighters Local 118 v. City of Cleveland, 478 U.S. 501 (U.S. Supreme Court 1986) (Firefighters test for consent decree and scope of remedial relief)