Win Some, Lose Some - Google, Copyright and the Courts

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.