Court should consider whether Google's book digitising project was 'fair use' of copyrighted material, US court rules

The US Court of Appeals said that a district court had been "premature" in ruling last year that individual authors could group together to bring a 'class action' lawsuit against Google for copyright infringement.

The Court said that a district court must first determine whether Google has a 'fair use' defence to the infringement claims facing it before any 'class action' lawsuit is sanctioned.

"On the particular facts of this case, we conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google's 'fair use' defence," the Court said. "Accordingly, we vacate the June 11, 2012 order certifying the class and remand the cause to the District Court, for consideration of the fair use issues, without prejudice to any future motion for class certification."

Class action lawsuits are common in the US, where lawyers organise many similarly-affected people into large lawsuits against companies or organisations that have allegedly breached the law.

US trade association the Authors Guild has long challenged Google's right to digitise books as part of its Google Books projects. Last year it won the right to bring a lawsuit against Google on behalf of US authors whose works were digitised in the Google Books project, but the US Court of Appeals has now overturned that ruling.

As part of its Google Books project, Google scanned the contents of entire libraries. It allows users to search for snippets of the material to see whether the publication has the information they are looking for. The Authors Guild has claimed that Google is guilty of copyright infringement, but the technology giant has refuted the claims and said that many, if not a majority, of the authors that would make up the 'class' bringing a lawsuit against it benefit from its project and do not support the Authors Guild's action.

The US Court of Appeals has ruled that a district court should evaluate Google's claimed 'fair use' defence to the infringement claims (5-page / 412KB PDF) before it decides on whether to allow a class action to proceed.

"We believe that the resolution of Google's fair use defence in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs' injuries, the typicality of their claims, and the predominance of common questions of law or fact," the Court said.

"Moreover, we are persuaded that holding the issue of class certification in abeyance until Google's fair use defence has been resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand," it added.

In the US the 'fair use' exemption in copyright law allows copyright material to be reproduced for the purposes of research and education, commentary, criticism and reporting.

Whether reproduction of copyrighted works is defensible in the US by the 'fair use' defence depends on the consideration of certain factors, including the purpose and character of use and whether it was for commercial gain or not, the nature of the copyrighted work itself, how much of the copyrighted work was reproduced and the effect of that use on the potential market for or value of the work.