Appellate Court: Class Certification Ruling in Google Books Case Puts Cart Before Horse

Class certification is premature in the Google mass books digitization case, says a federal appellate court. Fair use has to be decided first.

In the latest twist in the litigations over Google’s library-scanning project, The Second Circuit Court of Appeals yesterday vacated Judge Denny Chin’s class certification ruling* of last May in Authors Guild v. Google.  The appellate court said that resolution of the fair use issues needed to come first since it would help determine whether “the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact” merited treating the lawsuit as a class action.

In other words, if Google’s fair use defense requires a book-by-book analysis, then this would weigh against class certification. If a fair use ruling can be made more broadly, then judicial economy is more likely to weigh on the side of class certification.Following Judge Chin’s ruling on fair use, plaintiffs (the three individual class representatives and the Authors Guild as associational plaintiff) may move for reconsideration of their class certification motion.

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*That decision also bears the caption of the American Society of Media Photographers v. Google, a separate copyright infringement lawsuit by photographers against Google over its library-scanning project.