PW: The Google Case Grinds On

My latest Publishers Weekly column is online. This one, unsurprisingly, concerns the decertification of the Google Books class action. If you read my blog post yesterday or my tweets, there will be few surprises. Here’s the opening:

The Google Books litigation, now in its eighth year, is not so much out of gas as low on motor oil. It grinds on, with more smoke and noise than forward progress. Last May, Judge Denny Chin certified the case as a class action, setting it on a track to resolve, at long last, Google’s liability in one fell swoop. But today, the Second Circuit appeals court vacated Chin’s order, decertifying the class and sending the case back to him to consider Google’s fair use defense.

And here’s a brief passage from later on

The difference is one of those procedural distinctions that lawyers love to hate, and everyone else simply hates: the proper sequencing of issues. Judge Chin put class certification first, and would have gone on to consider fair use at a later date. But the Second Circuit held that fair use is a horse, not a cart, so it must come first. In theory, Judge Chin is free to recertify the class once he deals with fair use.