SDNY Certifies Class and Denies Motion to Dismiss in Google Books Lawsuit | Practical Law

SDNY Certifies Class and Denies Motion to Dismiss in Google Books Lawsuit | Practical Law

In Authors Guild v. Google, Inc., the US District Court for the Southern District of New York denied Google's motions to dismiss the copyright claims of the Authors Guild and various other author and artist organizations for lack of standing and granted the Authors Guild's representative plaintiffs' motion for class certification.

SDNY Certifies Class and Denies Motion to Dismiss in Google Books Lawsuit

Practical Law Legal Update 3-519-7518 (Approx. 5 pages)

SDNY Certifies Class and Denies Motion to Dismiss in Google Books Lawsuit

by PLC Intellectual Property & Technology
Published on 04 Jun 2012 • USA (National/Federal)
In Authors Guild v. Google, Inc., the US District Court for the Southern District of New York denied Google's motions to dismiss the copyright claims of the Authors Guild and various other author and artist organizations for lack of standing and granted the Authors Guild's representative plaintiffs' motion for class certification.

Key Litigated Issues

The key issues before the court in Authors Guild v. Google, Inc., were whether the district court should grant:
  • Google's motions to dismiss the copyright infringement claims of the American Society of Media Photographers (ASMP) and other visual artists' associations (collectively, the ASMP Associational Plaintiffs), and the Authors Guild (AG Associational Plaintiff, together with the ASMP Associational Plaintiffs, Associational Plaintiffs) for lack of Article III standing.
  • The Authors Guild (AG) individual plaintiffs' (AG Representative Plaintiffs) motion for class certification.

Background

In 2004, Google entered into agreements with several major research libraries to digitally copy books and other writings in the libraries' collections. During this project, Google:
  • Scanned more than 12 million books.
  • Delivered digital copies to the participating libraries.
  • Created an electronic database of the books and made text available for online searching.
Although millions of these books were still under copyright, Google never obtained permission to scan them.
In 2005, the AG Associational Plaintiff and AG Representative Plaintiffs (together, AG Plaintiffs) brought a class action suit against Google for copyright infringement. The AG Plaintiffs claimed that Google engaged in massive copyright infringement through each of the following acts:
  • Reproducing in-copyright books.
  • Distributing these reproductions to libraries.
  • Publicly displaying snippets of these works in response to online search requests.
The AG Representative Plaintiffs sought damages and injunctive and declaratory relief. The AG Associational Plaintiff sought only injunctive and declaratory relief.
In 2011, the ASMP Associational Plaintiffs and several individual ASMP members (ASMP Representative Plaintiffs, together with the ASMP Associational Plaintiffs, ASMP Plaintiffs) brought a separate class action against Google for copyright infringement on behalf of individual copyright holders in visual works included in the books that Google copied.
On December 12, 2011, the AG Representative Plaintiffs moved for class certification. Google moved to dismiss all claims of the Associational Plaintiffs for lack of standing on December 22, 2011.

Outcome

In its May 31, 2012 decision, the district court denied Google's motion to dismiss the Associational Plaintiffs' copyright infringement claims for lack of Article III standing and granted the AG Representative Plaintiffs' motion for class certification.

Google Motion to Dismiss

The district court found that the Associational Plaintiffs each have Article III standing to pursue copyright infringement claims against Google on behalf of their individual members. The district court relied principally on Hunt v. Washington State Apple Advertising Commission, in observing that the Associational Plaintiffs would have standing to bring suit on behalf of their members if they satisfied all of the following factors:
  • Their members would otherwise have standing to sue in their own right.
  • The interests they seek to protect are germane to these organizations' purposes.
  • Neither the claim asserted nor the relief requested would require the participation of individual members in the lawsuit.
(432 U.S. 333 (1977).)
Because Google did not dispute that the Associational Plaintiffs satisfied the first two Hunt factors, the district court discussed only the third factor, which presented a question of prudential, rather than Article III constitutional, standing.

Analysis of Third Hunt Factor

To determine whether the Associational Plaintiffs satisfied the third Hunt factor, the district court examined the degree of individualized proof required to assert the copyright claims and grant the requested relief.
The district court found that this factor was satisfied and that the Associational Plaintiffs have standing to sue Google on behalf of their individual members because the associations' claims of copyright infringement and requests for injunctive relief would require the participation of only a few individual association members. The district court specifically found that:
  • Limited individual participation would be needed to establish the associations' copyright infringement claim because:
    • the first element of the claim, ownership of a valid copyright, can be proven by information publicly available on the US Copyright Office's Registry;
    • requiring some individual association members to present documentary evidence of their beneficial copyright interest as recipients of copyright royalties would not make the case administratively inconvenient or unmanageable; and
    • the second element of the claim, copying of original elements of the work, is undisputed.
  • The Associational Plaintiffs requested only injunctive and declaratory relief, which involve requests for non-damages relief and pure questions of law that are typically appropriate for granting discretionary associational standing.
The district court emphasized that the primary purposes of the third Hunt factor, directed to discretionary, prudential standing, are to promote administrative convenience and judicial efficiency. Noting that granting the Associational Plaintiffs standing better served these purposes, the district court also rejected Google's argument that its fair-use defense would require the participation of individual association members because:
  • Google's fair-use defense could be accommodated by grouping association members and their respective works into subgroups.
  • The court could effectively assess the merits of the fair-use defense with respect to each of these subgroups without conducting an evaluation of each individual work.

Equitable Considerations

The district court reasoned that equitable considerations justified granting the Associational Plaintiffs standing, even if the third Hunt factor were not satisfied. Specifically, granting the Associational Plaintiffs standing would confer advantages on their individual members and the judicial system because an association can:
  • Draw on a pre-existing base of expertise and capital otherwise unavailable to its individual members.
  • Assure concrete adverseness.
  • Sharpen the presentation of issues the court depends on for understanding difficult questions.
The court also noted that because Google copied and made search results available en masse and treated the copyright holders as a group, it was only fair and equitable that the copyright holders be able to litigate against Google as a group.

Class Certification

The district court granted the AG Representative Plaintiffs' motion for class certification because the plaintiffs met the prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure and the putative class could be certified and maintained under Rule 23(b).
The prerequisites of Rule 23(a) are:
  • Numerosity.
  • Commonality.
  • Typicality.
  • Adequacy of representation.
Google did not dispute that the AG Representative Plaintiffs satisfied the first three prerequisites. The district court found that the AG Representative Plaintiffs satisfied the last, adequacy prerequisite because:
  • Their copyright claims do not conflict in any way with the copyright claims of the other class members.
  • The fact that some class members may prefer to leave alleged violations of their rights unremedied is not a basis for finding the lead plaintiffs inadequate.
The district court then ruled that class certification was warranted because the predominance and superiority requirements of Rule 23(b)(3) were satisfied because:
  • The common issues presented in the litigation:
    • predominate over any individual issues;
    • are largely subject to generalized proof; and
    • do not depend on any individualized considerations.
  • Class action is the superior method for resolving the action because it is more efficient and effective than requiring thousands of authors to sue Google individually.
On September 17, 2012, the US Court of Appeals for the Second Circuit issued an order granting Google's motion to stay the district court proceedings pending appeal of the class certification order.

Practical Implications

This case illustrates that courts remain committed to ensuring that cases, especially larger cases that could involve thousands of plaintiffs, are administratively convenient, efficient and fairer to the individual plaintiffs. By permitting an association to sue on behalf of its individual members and permitting class actions, the court can avoid inefficiency and costly, duplicative efforts.

Court Documents