The Second US Circuit Court of Appeals in New York finally ruled
today that the class formed by The Authors Guild against the Google book-scanning program was inappropriately certified by Judge Denny Chin, the judge overseeing the case. The overturning judgement ruled that the certification was made before deciding if the "fair use" defense allows Google to legally display snippets of books it has scanned.
"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," said the panel about its ruling.
As a result of the ruling, members of The Authors Guild must now sue individually, rather than as a group. The Authors Guild has asked the court to force Google to pay $750 per book it scanned for distribution
, claiming that Google's effort does not constitute "fair use" under copyright law. Google believes that the book scanning effort "constitutes fair use by allowing users to identify interesting books and find ways to borrow or buy those books, much like a card catalog for the digital age."
Google has argued for dismissal
of the suit on those same "fair use" grounds. A $125 million settlement
was reached in March 2011 between Google and The Authors Guild, but was rejected on legal grounds by Judge Chin, despite his saying publicly that he sees tangible benefits to libraries from both the scanning effort and technology developed to scan the books. The judge said that the agreement overreached because it gave Google a "de facto
monopoly" to copy books without permission from rights holders, and served to increase its market share in online searches.