In the span of six days, Google has lost and won key
decisions in two important copyright cases it is a party to. On May 31, in its class action battle against
the Authors Guild, it lost the certification fight when Judge Denny Chin
granted certification status to the plaintiffs. On June 5th, Google won big
when Judge William Alsup found that its use of Sun Microsystem's API code,
which now belongs to Oracle, was a fair use.
The class certification in the Authors Guild case
(No. 05 Civ. 8136, USDC S.D.N.Y.) is an interesting development. Last year,
Judge Chin rejected an amended version of the proposed settlement agreement, citing,
among other reasons, that the proposed class might not be able to adequately
represent the very diverse interests of different kinds of authors. Prof. Pam
Samuelson of Berkeley Law School had authored a letter signed by many law
professors, noting that writers of academic scholarly works were more
interested in the widespread distribution of their works, rather than income -
a concern Judge Chin acknowledged in rejecting the settlement.
However, in last week's decision, Judge Chin
summarily dismissed the "adequacy of representation" argument by
noting that authors who don't feel that their interests can be represented in
this action can simply opt out of the class. This is a weak argument in that
these authors are, as a group, far less likely to bring a suit against Google
for copyright infringement given their limited damages and the costs associated
with litigation.
It remains to be seen whether any party will appeal
this certification decision. Under FRCP
Rule 23(f), an interlocutory appeal could be filed at this point in the
litigation.
The next step in the case will be cross-motions for
summary judgment on the issue of whether Google's downloads are fair use. Given
some of Judge Chin's statements in his decisions to date, there is some
speculation that a reason he granted certification was that he intends to find
that Google's actions were not not fair use - a decision that would render moot
any objections by possible class members as to the adequacy of representation.
The motions will be filed this summer, with a hearing scheduled for September.
This is a key copyright case to keep an
eye on.
In its litigation with Oracle, Google's fair use
argument succeeded. At issue was
Oracle's claim that Google, in using Sun's application programming interfaces
(APIs) in its Android mobile operating system, infringed the copyright in the
interface software. Google argued that the API is so basic and fundamental to
carry out a system of commands that finding infringement was too
"sweeping" a proposition, and that the APIs were just outside of the
scope of copyright protection. The web industry breathed a collective sigh of
relief on this one.
As for Oracle, they come up with a big goose egg in
this case - losing on both their copyright and patent infringement claims, and
incurring what are likely to be some pretty hefty legal fees in the process.
