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Appeals Court Orders Fair Use Probe in Google Book-Scanning Lawsuit

The Second Circuit vacates a June decision that certified a class of authors pursuing the online giant for scanning millions of books without permission.

In an eight-year-old lawsuit over allegations that Google violated copyright by scanning millions of books from several libraries into a digital database, the Second Circuit Court of Appeals has overturned a federal judge's class certification of authors. The development represents the latest twist in one of the largest copyright lawsuits in history.

In making the move to suspend class certification, the appeals court remanded the dispute back down to a federal court to examine Google's fair use defense.

The fact that this case is still going on is fairly remarkable.

After the 2005 lawsuit was brought by The Authors Guild and the Association of American Publishers over what was then called "Google Book Search," the parties reached a $125 million settlement that would have set up a new royalty program where rights-holders would have received a share of revenues from institutional subscriptions to the collection of books made available through Google.

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But a judge rejected that settlement in March 2011, saying it "is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission."

Late last year, Google reached another settlement with several large publishers including John Wiley & Sons, McGraw-Hill Companies, the Penguin Group and Simon & Schuster. Under that agreement, publishers were able to choose whether to make available their books and journals digitized by Google for its Library Project.

The litigation with the authors continued.

Google objected to the class certification on standing grounds and argued that there was not enough commonality among the plaintiffs in representing a class. When the argument failed last June, Google appealed it to the Second Circuit.

According to Monday's ruling, "Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class -- an argument which, in our view, may carry some force -- we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues."

As a result, the case is headed back to a New York district court where Google will pursue its other big argument that it has only made snippets of books available and that the searchable database is equivalent to a card catalog. Authors say that to do this, Google had to scan entire books in alleged violation of copyright laws.

E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner