It has been seven years since The Authors Guild and some of its individual members first filed suit against Google, charging that its Library Project—to the extent it posted “snippets” of works still in copyright—constituted a massive copyright infringement.  Initially, Google welcomed the class action as a vehicle for negotiating a global settlement of such claims that would have, among other things, given Google the exclusive right to digitize so-called orphan works, millions of books still in copyright but not in print and for which the identity of the copyright owner could not readily be ascertained.  It was a breathtakingly imaginative and audacious use of the litigation process, “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court.”  But ultimately two negotiated settlements were rejected in the face of intense opposition, including antitrust concerns raised by the Department of Justice.  Now Google and the authors find themselves in an old-fashioned lawsuit.

Last week, the presiding judge, Denny Chin, in an opinion here, rejected Google’s attempts to have the The Authors Guild dismissed for lack of standing, and granted the plaintiffs’ motion for class action certification.  It is a major milestone in the long-running case, and previews to some extent the arguments that Google will be making on the merits, principally that the snippets constitute fair use of the copyrighted materials for research and promotional purposes.  Judge Chin suggested that he would likely subdivide the author class into sub-classes, such as “fiction, non-fiction, poetry, and cookbooks” to assess the fair use issues with respect to different catagories.  The case may result in some important guidance in the murky area of fair use.  I will be watching this one closely, not only as a member of The Authors Guild and, therefore, now a member of the plaintiff class, but also for any reliance on my own long-ago contribution to the law of fair use, Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191 (3d Cir. 2003), where the court held that it was not fair use to make snippets of motion pictures available on a website, obstensibly for search and promotional purposes.

Previous Post
Leave a comment


  1. WITH AMICI LIKE THIS, WHO NEEDS HOSTIS? « Express Written Dissent
  2. LITTLE ORPHAN ANNOYANCES « Express Written Dissent

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

  • Recent Posts

  • Unfair to Genius

    Unfair to Genius is an enlightening and entertaining romp through 60 tumultuous years of legal, artistic, and economic change in the American popular music industry, as seen through the lens of one of its most prolific copyright litigants and legendary outsiders, Ira B. Arnstein. "I suppose we have to take the bad with the good in our system which gives everyone their day in court," Irving Berlin once said, but "Arnstein is stretching his day into a lifetime."

    "Rosen paints a fascinating portrait of one of history's most fertile creative eras--the rise of Tin Pan Alley, or the 'Age of the Songwriter' as Rosen calls it--and the book brims with history relevant to today's disruptive technology climate."

    -Publishers Weekly

    "There's fun to be found in 'Unfair to Genius' as it leavens legal history with showbiz anecdote, and insight with amusement."

    -The Wall Street Journal

    “Superbly researched and written . . . Rosen deftly plots the rise of the music industry in America."


  • Categories

  • Gary A. Rosen

    Gary A. Rosen, a lawyer, has litigated copyright, patent, and other intellectual property cases for more than 25 years, and is a Lecturer in Legal Studies at the University of Pennsylvania's Wharton School. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr. He holds a degree in physics from Haverford College and graduated magna cum laude from the University of Michigan Law School. He and his wife Lisa, a physician, and their two children live outside Philadelphia.
  • Advertisements
%d bloggers like this: