An aspect of our class-action copyright infringement action over Google's scanning of millions of library books was before a federal appellate court today. Before we get to that, let's review where we are.
Last May, Judge Chin made a key ruling, certifying a class of U.S. authors with registered copyrights in the books scanned by Google. In July, attorneys for authors and for Google filed cross-motions for summary judgment (essentially, judgment following discovery and depositions based on undisputed facts) with Judge Chin. The outcome of those motions will almost certainly turn on whether Judge Chin deems Google's book digitization project to be a fair use.
Defendants in class actions can seek to appeal class certification decisions immediately, or they can wait until the trial court has decided the substantive issues of the case (liability and any damages, generally) and appeal all aspects of the trial court's rulings, including the the court's class certification decision. Google chose to appeal the class-certification ruling to the Second Circuit Court of Appeals immediately, before Judge Chin had an opportunity to decide the fair use issue. Further proceedings on the summary judgment motions have been stayed pending the Second Circuit's review.
Today, the three-judge appellate panel questioned whether it was premature to consider the class certification issue. Judge Pierre Leval in particular urged that class certification issues were best reviewed in tandem with the underlying copyright liability/fair use determination. He suggested that the appellate court should hold off on Google's appeal of class certification and remand the case to Judge Chin for a decision on copyright liability.
The court, as is customary, reserved decision, not ruling on Google's appeal today.