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Google Wins Reversal of Class Status in Authors’ Lawsuit

July 1 (Bloomberg) -- Google Inc. won the reversal of a court order allowing authors to sue as a group in a $3 billion lawsuit alleging the technology company violated copyrights with its project to digitize millions of books.

The trial judge should have considered whether the fair-use defense would apply to Google’s project, a federal appeals court in Manhattan ruled today. That doctrine allows the use of copyrighted materials without permission for educational, research and news purposes.

“Class certification was premature in the absence of a determination by the district court of the merits of Google’s fair-use defense,” the appeals panel said in its ruling.

The Authors Guild, which represents writers, and individual authors sued in 2005, alleging that Google, owner of the world’s most popular search engine, infringed copyrights by scanning and indexing more than 20 million books without writers’ permission. Google’s legal defense relies on the fair-use doctrine.

Judge Denny Chin last year ruled the plaintiff class would include all authors living in the U.S. who have at least one book in Google’s project. Google appealed. Both sides asked Chin for judgment without a trial, and he halted action on those requests until the appeals court ruled.

Lawyers for Google said in their argument before the appellate court in May that the authors couldn’t claim to represent the position of all potential class members. Many writers benefit from the use of their works in the Google project, the company said.

Dual Benefit

“We are delighted by the court’s decision,” Matt Kallman, a spokesman for Mountain View, California-based Google, said in an e-mailed statement. “The investment we have made in Google Books benefits readers and writers alike, helping unlock the great pool of knowledge contained in millions of books.”

Google said in court papers that it has digitally scanned more than 20 million books worldwide and that Internet searchers would be able to view “snippets” of each book online.

Robert LaRocca, a lawyer for the writers, said on the phone that he didn’t have an immediate comment on the ruling.

The appeals court indicated how it might rule during the arguments in May. U.S. Circuit Judge Pierre Leval repeatedly questioned Google’s lawyer about the timing of its appeal. Leval suggested that the district court might consider the fair-use issue first and then the appeals court could decide the class certification matter.

Accord Rejected

Chin rejected a settlement between the authors and Google in 2011, and attempts to renegotiate that deal failed.

The three writers named in the appeal are Jim Bouton, the author of “Ball Four”; Betty Miles; and Joseph Goulden. The Authors Guild remains a plaintiff in the case but wasn’t a party to the appeal because it is not a member of the proposed class.

The appeals case is Authors Guild v. Google, 12-3200, U.S. Court of Appeals for the Second Circuit (Manhattan). The lower-court case is Authors Guild v. Google, 05-08136, U.S. District Court, Southern District of New York (Manhattan).

To contact the reporter on this story: Christie Smythe in New York at csmythe1@bloomberg.net; Don Jeffrey 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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