Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal

Abstract

Filed in the Second Circuit Court of Appeals in Support of Defendant-Appellant Google.

Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. Although the District Court, in rejecting the proposed Google Books settlement last year, recognized that the class representatives and their lawyers had not adequately represented the interests of academic authors when negotiating the proposed settlement, the court brushed aside concerns about adequacy of representation when the case went back into litigation, despite an academic author submission that challenged class certification because of inadequacies in the plaintiffs’ representation of academic author interests. These concerns should have been taken seriously because academic authors make up a substantial proportion of the class that the District Court certified; most of the books that Google scanned from major research library collections were written by academics. Academic authors overall greatly outnumber generalist authors such as the named plaintiffs.

Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. That settlement would at least have expanded public access to knowledge, whereas this litigation seeks to enjoin the Google Book Search operations and shut down access to works of class members even though academic authors would generally favor greater public access to their works. Because of this, the interests of academic authors cannot be adequately accommodated in this litigation by opting out of the class, as the District Court assumed. Indeed, the only way for the interests of academic authors to be vindicated in this litigation, given the positions that the plaintiffs have taken thus far, is for Google to prevail on its fair use defense and for the named plaintiffs to lose.

For this reason, there is a fundamental conflict between the interests of the named class representatives and the interests of academic authors. Academic authors typically benefit from Google Books, both because it makes their books more accessible to the public than ever before and because they use Google Books in conducting their own research. Google’s fair use defense is more persuasive to academic authors than the plaintiffs’ theory of infringement. The plaintiffs’ request for an injunction to stop Google from making the Book Search corpus available would be harmful to academic author interests.

In short, a “win” in this case for the class representatives would be a “loss” for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed.

Keywords: copyright, class action, academic authors, open access, fair use