• by Wendy Davis  @wendyndavis, February 11, 2013

The Authors Guild is asking a federal appellate court to allow longstanding litigation about Google's book project to proceed as a class-action.

The authors group argues that U.S. Circuit Court Judge Denny Chin correctly rejected Google's contention that copyright infringement requires case-by-case evaluation. "It is duplicitous for Google to implement a single, mass digitization policy affecting the rights of so many authors while at the same time argue that its policy must be analyzed in countless separate lawsuits," the Authors Guild says in a brief filed late last week with the Second Circuit Court of Appeals.

Last year, Circuit Court Judge Chin in New York certified the Authors Guild's lawsuit as a class-action. Chin ruled that it wouldn't be fair to require writers to sue Google individually.

Google is appealing that decision to the 2nd Circuit, which stayed the litigation when it considers the issue. Google argues that a class-action isn't appropriate because the Authors Guild and its members have conflicting interests. Google says that many writers approve of its decision to scan millions of books from public libraries and make them searchable.

The company says a survey it commissioned of 800 authors shows that most like the digitization project. Most survey respondents -- 58% -- said they approved of Google scanning their books, while 19% say they have or would benefit from Google's scans.

But the Authors Guild calls that survey "invalid and misleading" in its new court papers.

"Google has no evidence a single author has financially benefited from Google Books," the Authors Guild argues. The organization also denies that its position conflicts with book writers. "Every class member timely registered their books (or had their publishers do so), an act that evinces a desire for maximum copyright protection," the group argues.

Google also says that class-action certification is a mistake because the case presents fair use issues that require individual assessment. The Authors Guild disagrees, noting that Google itself already drew on "generalized, class-wide evidence" when it argued that the case should be dismissed on fair use grounds.

The Authors Guild recently lost a fair use argument in another lawsuit stemming from Google's book digitization. In that case, U.S. District Court Judge Howard Baer in New York dismissed a lawsuit by the Authors Guild against five universities that worked with Google to digitize the books.

"I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts," Baer wrote in that case.

The Authors Guild's dispute with Google dates to 2005, when the organization sued Google for allegedly infringing copyright by scanning library books and displaying snippets of some of them in its search engine, in response to queries. The Authors Guild and Google reached a settlement several years ago, but Chin scuttled the deal due to antitrust concerns.

That agreement would have allowed Google to create a new book registry and sell digital downloads at prices it sets with the registry. That deal also would have immunized Google -- but no other companies -- from copyright infringement liability for digitizing orphan works, or books under copyright whose owners can't be found. Critics, including consumer advocacy groups, argued that this provision would have granted Google a monopoly in orphan works.