Appeals Court Hints VERY Strongly That Google Books Is Fair Use, Even Though It Wasn't Asked About That

Back in May, we noted that the appeal in the Authors Guild case against Google over Google Books had taken something of an odd turn. The specific question on appeal had been entirely focused on whether or not it was appropriate to have this be a class action lawsuit for all authors. Google had, quite reasonably, argued that fair use can be pretty fact specific, and a very different analysis may apply for different kinds of books, and thus it would be a bad idea to lump all authors together in a class action lawsuit. However, the district court had ruled in favor of a class action, and supposedly it was that question that was being discussed on appeal. Instead, we noted that during the oral arguments, the three judge panel seemed to have no interest in that actual question, and instead talked about how Google's book scanning project seemed likely to be covered by fair use. So, I guess it should come as little surprise that today's ruling on the matter barely even mentions the class action issue, other than to say that Google's argument "may carry some force." Instead it sends the case back to the district court, saying that it should do the fair use analysis first, suggesting that this might make the whole question of whether or not a class should be certified entirely moot. In other words, the Second Circuit is basically screaming to the district court: "what Google is doing is fair use, full stop, so we're wasting time arguing about whether or not this is a class action: just end the thing by saying it's fair use." The ruling is short and sweet and is a huge victory for Google. Here's the key part:

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, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact, see Fed. R. Civ. P. 23(a)(2), (3), (b)(3). See, e.g., FPX, LLC v. Google, Inc., 276 F.R.D. 543, 551 (E.D. Tex. 2011) (denying plaintiffs’ request for class certification “because of the fact-specific inquiries the court would have to evaluate to address [defendants’] affirmative defenses [including fair use of trademarks]”); Vulcan Golf, LLC v. Google Inc., 254 F.R.D. 521, 531 (N.D. Ill. 2008) (“The existence of affirmative defenses [such as fair use of trademarks] which require individual resolution can be considered as part of the court’s analysis to determine whether individual issues predominate under Rule 23(b)(3).”); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.12 (1978) (“Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses . . . and the presence of common questions of law or fact are obvious examples.” (quotation marks omitted)); Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (“[A] court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”); cf. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (holding that “a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims”). Moreover, we are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand. Accordingly, we vacate the District Court’s order of June 11, 2012 certifying plaintiffs’ proposed class, and we remand the cause to the District Court, for consideration of the fair use issues.

I'm actually somewhat surprised at this. While I've argued from the very beginning that Google's book scanning project was clearly fair use (and was annoyed when it looked like Google was dropping that argument in its original settlement effort), it does seem a bit strange for the judges to jump straight to the fair use analysis across the board. I would guess that the Author's Guild, somewhat ironically, might now want to hit back with Google's own argument in tryin