Google Says Authors Can’t Sue Over Digital Books as Group

Google Inc. (GOOG) asked an appeals court to deny class status to a group of authors who claim in a $3 billion lawsuit that the company’s project to digitally copy millions of books from libraries violates their copyrights.

Lawyers for Google and three writers, including Jim Bouton, the author of “Ball Four,” argued their case today before a three-judge panel of the U.S. Court of Appeals in Manhattan. Google is seeking to overturn a lower-court order that let the authors proceed as a class on behalf of other writers.

“Plaintiffs cannot claim to represent the many class members who benefit from and approve of Google Books,” Seth Waxman, a lawyer for Mountain View, California-based Google, told the judges, who said they would issue a ruling later.

The Authors Guild, which represents writers, and individual authors sued in 2005, alleging that Google, owner of the world’s most popular search engine, was making digital copies of books from libraries without seeking permission from copyright owners or paying fees.

Judge Denny Chin rejected a negotiated settlement by the parties in 2011. Attempts to renegotiate the deal failed, and the litigation resumed. Chin granted class certification last year to all authors residing in the U.S. who have at least one book in Google’s project.

Class certification makes it possible for all those who meet specified criteria to sue together rather than separately, increasing the chances of a settlement.

‘Not Piecemeal’

“Let’s get it adjudicated on a class basis, not piecemeal, book-by-book,” Robert LaRocca, a lawyer for the authors, told the judges.

Google said in court papers that it has scanned more than 20 million books worldwide and that Internet searchers would be able to view “snippets” of each book online. Its defense relies on the fair-use provision of copyright law, which allows the use of copyrighted materials without permission for educational, research and news purposes.

U.S. Circuit Judge Pierre Leval suggested that defense might be worth adjudicating first.

“The big question is: Is Google going to succeed with its fair-use defense?” he said to the company’s lawyer. “The class-action question raises interesting and challenging points, but I wonder if you’re out of sequence.”

Come Back

Leval said the appeals court might send the case back to the district court to consider the fair-use argument and the parties could return later to the appeals court on the class-action matter.

“I don’t want to litigate fair-use issues with one hand tied behind my back,” Waxman replied.

Last July, the parties filed motions for judgment without a trial. Chin halted action on the case in district court until the appeals court rules.

The authors are seeking statutory damages of $750 for each book. Court papers state that more than 4 million English-language books have been digitally copied. That would mean damages of at least $3 billion, a figure named by Waxman in court today.

The other authors in the appeal are Betty Miles and Joseph Goulden. The Authors Guild, still a plaintiff in the case, isn’t a party to the appeal because it’s not a member of the class.

The case is Authors Guild v. Google, 12-3200, U.S. Court of Appeals for the Second Circuit (Manhattan).

To contact the reporter on this story: Don Jeffrey in federal appeals court in New York at djeffrey1@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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