The Authors Guild v. Google, Inc.

Filing 32

SUPPLEMENTARY PAPERS TO MOTION [25], on behalf of Petitioner Google, Inc., FILED. Service date 07/10/2012 by CM/ECF.[660074][32] [12-2402] [Entered: 07/11/2012 11:55 AM]

12-2402
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THE AUTHORS GUILD, INC., Associational Plaintiff, BETTY MILES,
JOSEPH GOULDEN, and JIM BOUTON, on behalf of themselves
and all others similarly situated,
Plaintiffs-Respondents,
v.
GOOGLE INC.,
Defendant-Petitioner.
From an Order Granting Certification of a Class Action, Entered on May 31, 2012,
by the United States District Court for the Southern District of New York, No.
1:05-cv-08136-DC Before the Honorable Denny Chin
REPLY IN SUPPORT OF THE PETITION OF DEFENDANTPETITIONER FOR PERMISSION TO APPEAL PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 23(f)
DARALYN J. DURIE
JOSEPH C. GRATZ
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
[phone]

SETH P. WAXMAN
LOUIS R. COHEN
RANDOLPH D. MOSS
DANIEL P. KEARNEY, JR.
ARI HOLTZBLATT*
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]

July 4, 2012

* Admitted to practice only in Maryland

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
I.

CLASS PLAINTIFFS CANNOT ADEQUATELY REPRESENT CLASS
MEMBERS WHO WANT GOOGLE BOOKS TO CONTINUE ...................................1

II.

GOOGLE’S FAIR USE DEFENSE RAISES INDIVIDUAL ISSUES THAT
PRECLUDE A FINDING OF PREDOMINANCE .......................................................5

III.

THERE IS A COMPELLING NEED FOR IMMEDIATE APPELLATE
REVIEW ...........................................................................................................10

CONCLUSION........................................................................................................10
CERTIFICATE OF ELECTRONIC FILING
CERTIFICATE OF SERVICE

-i-

TABLE OF AUTHORITIES
CASES
Page(s)
Alston v. Virginia High School League, 184 F.R.D. 574 (W.D. Va. 1999) ......1, 3, 4
Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988) .....................................2
Cambridge University Press v. Becker, 2012 WL 1835696 (N.D. Ga.
May 11, 2012)..............................................................................................5, 6
Feist Publications v. Rural Telegraph Service, 499 U.S. 340 (1991) .......................9
Freeland v. AT&T, 238 F.R.D. 130 (S.D.N.Y. 2006)................................................2
Gilpin v. AFSCME, 875 F.2d 1310 (7th Cir. 1989) ...................................................1
Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) ..................9
In re Fedex Ground Package System, Employment Practices
Litigation, 2007 WL 3027405 (N.D. Ind. 2007) .............................................4
In re Sumitomo Copper Litigation, 262 F.3d 134 (2d Cir. 2001)..............................5
Lanzarone v. Guardsmark Holdings, 2006 WL 4393465 (C.D. Cal.
Sept. 7, 2006)...................................................................................................4
Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) ..................................................3
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) ...........................4
Peterson v. Oklahoma City Housing Authority, 545 F.2d 1270 (10th Cir.
1976) ................................................................................................................2
Regents of University of California v. Credit Suisse First Boston
(USA), 482 F.3d 372 (5th Cir. 2007) .............................................................10
Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011) ...................................................6

- ii -

I.

CLASS PLAINTIFFS CANNOT ADEQUATELY REPRESENT CLASS MEMBERS
WHO WANT GOOGLE BOOKS TO CONTINUE
Class Plaintiffs’ suit seeks to dismantle the Google Books project from

which many absent class members clearly benefit. This stark divergence of
interests precludes a finding of adequacy under Rule 23(a). Pet. 9-12.
1.

Plaintiffs contend (Opp. 9) that any conflict “regarding the speculative

potential impact of a perceived future remedy” should be “disregarded at the class
certification stage.” That is not the law: “Adequacy” is not met where the class
plaintiffs’ litigation objectives conflict with basic interests of other class members.
See Pet. 11-12; see also Gilpin v. AFSCME, 875 F.2d 1310, 1313 (7th Cir. 1989)
(Posner, J.) (no adequacy where one part of class of nonunion workers seeking
monetary “restitution” from union desired to weaken the union for political reasons
and another part wished merely to shift the cost of representation to union
members); Alston v. Va. High Sch. League, 184 F.R.D. 574, 579-80 (W.D. Va.
1999) (refusing to certify class where majority of purported class opposed
disruption of status quo that would result from injunctive relief sought by
plaintiffs). Plaintiffs’ brief simply ignores the ample case law for that
proposition—including decisions from multiple courts of appeals. See Pet. 10-11.
Nor is Google’s argument here based only on speculation about absent class
members’ “feelings” about Google Books. Opp. 11. Many authors plainly benefit
concretely from Google Books—from the greater access to, and demand for, their

books made possible by the project—and would not seek to assert copyright
interests to put a stop to Google Books. See A36, A49 (only 14% of surveyed
authors objected when queried, “[H]ow strongly [do] you approve of or object to
Google scanning your copyrighted books so that they can be searched online and
short excerpts displayed in search results?” (emphasis added)). Courts have
regularly denied class certification in the face of similar conflicts. See, e.g.,
Bieneman v. City of Chicago, 864 F.2d 463, 465 (7th Cir. 1988) (no adequacy
where homeowners differed as to whether they benefited from increased operations
at nearby airport); Peterson v. Oklahoma City Hous. Auth., 545 F.2d 1270, 1273
(10th Cir. 1976) (no adequacy where tenants disagreed about the benefit of
authority’s deposit requirement).1
Plaintiffs further argue that it is somehow “premature” to consider issues of
equitable relief at the certification stage, and suggest that other “types of equitable
relief” may be available beyond an injunction. Opp. 10. But Plaintiffs’ complaint
expressly seeks to enjoin Google’s allegedly unlawful uses of class members’

1

In Freeland v. AT&T, 238 F.R.D. 130 (S.D.N.Y. 2006), on which Plaintiffs rely
(Opp. 11), the court found no “divergence of interests” (and thus no adequacy
problem) because four of the named plaintiffs shared the perspective of some
absent class members that “the inclusion of additional features in their [cellphone]
handsets” was beneficial. Id. at 141. Here, by contrast, the “divergence of
interests” could not be more stark, id.: Many absent authors benefit from and
approve of Google Books whereas the named Plaintiffs, who seek to block the
program altogether, have testified that Google Books is in no way beneficial, see
Bouton Dep. (Ex. 2 to Gratz Decl. [ECF No. 1003]) at 20:2-9, Goulden Dep. (Ex.
3) at 39:2-8, Miles Dep. (Ex. 5) at 11:20-13:3.
-2-

books. See Fourth Am. Compl. ¶¶ 45-52 (ECF No. 985). Plaintiffs cannot run
away from that request simply to ease class certification. See Alston, 184 F.R.D. at
580 (“Regard for the interests of all members includes … regard for the specific
remedies sought by class representatives as compared to the remedies favored by
other members of the class.”). Indeed, Plaintiffs have themselves explained that
they declined to opt out of Google Books individually because their principal
interest is to see the whole project undone through litigation. See, e.g., A101
(Miles Dep.) (explaining that she did not opt out because “[i]t is not the problem of
my books. It is the problem of the principle of doing this for all books.”). Even
assuming the possibility of other relief, class Plaintiffs could not adequately
represent authors who benefit from Google Books in the litigation or negotiations
over that relief.
2.

Plaintiffs also attack the evidence that many class members benefit

from Google Books, and argue that Google’s survey deserves “no weight.” Opp.
4-8. But it is Plaintiffs’ burden to prove the absence of any fundamental conflict
that would defeat Rule 23(a)’s “adequacy” requirement—not Google’s burden to
prove that many class members have different objectives. See Myers v. Hertz
Corp., 624 F.3d 537, 547 (2d Cir. 2010). And the survey merely reinforced what
was clear without it: Many authors benefit from (and would not wish to dismantle)
a search index that makes it possible for potential readers to find their books. See

-3-

Alston, 184 F.R.D. at 579 (“adequacy” requirement not met where “[c]ommon
sense” suggested that many class members “would not favor the relief requested by
plaintiffs”); cf. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 378 (2000) (“The
quantum of empirical evidence needed … will vary up or down with the novelty
and plausibility of the justification raised.”).
Contrary to Plaintiffs’ suggestion (Opp. 5), other courts have treated surveys
offered by defendants as relevant to determining adequacy. In Alston, the court
rejected class certification in a Title IX sex discrimination suit where “[a] majority
of the female public school athletes surveyed [by the defendant] expressed a desire
to preserve the status quo” regarding athletic scheduling. 184 F.R.D. at 579
(concluding that “[t]he results of the survey … indicate that plaintiffs do not
adequately represent the interests of all the members of their class”); see also
Lanzarone v. Guardsmark Holdings, 2006 WL 4393465 (C.D. Cal. Sept. 7, 2006)
(adequacy requirement not met where defendant’s survey demonstrated “that a
sizeable segment of the absent class members … [did] not want the validity of their
agreements challenged”).2

2

The survey rejected in In re Fedex Ground Package Sys., Employment Practices
Litig., 2007 WL 3027405 (N.D. Ind. 2007), on which Plaintiffs rely, bears no
resemblance to Google’s survey. The issue in that case was whether FedEx drivers
were appropriately classified as employees or independent contractors. The survey
simply asked drivers, “Would you prefer to perform your pick-up and delivery
services as an employee or an independent contractor?”—a pure question of law on
which the inclinations of the drivers could not have any bearing. Id. at *7.
-4-

Plaintiffs’ attacks on the survey itself are also unavailing. Their brief
trumpets (Opp. 7) that “only” 19% of surveyed authors said they financially benefit
from the project—but that figure is far larger than the 8% who said they are
harmed. A50. And benefiting “financially” is hardly the only benefit of having
one’s book read: A majority (58%) approved of the project and a significant
portion (45%) had seen or expected to see demand for their books improve (versus
4% who expected demand to be harmed). A49, A51. Plaintiffs also complain
(Opp. 6) that the script did not disclose to authors that they may be absent class
members or ask them whether they wanted to participate in litigation. Accord Add.
28a-29a. But the survey was not an opt-out notice; it was an effort to learn
whether class members generally shared the class Plaintiffs’ objectives of having
the Google Books project potentially shut down. A great many do not. In
certifying a class despite that basic conflict, the court’s decision was at a minimum
“questionable.” In re Sumitomo Copper Litig., 262 F.3d 134, 139 (2d Cir. 2001).
II.

GOOGLE’S FAIR USE DEFENSE RAISES INDIVIDUAL ISSUES THAT
PRECLUDE A FINDING OF PREDOMINANCE
Plaintiffs do not dispute that Google’s “fair use” defense is “the central issue

in this case.” Pet. 2. They contend only that “any assessment” of fair use in this
case “must be based on . . . common evidence.” Opp. 16-17. That is wrong.
Cambridge University Press v. Becker, 2012 WL 1835696 (N.D. Ga. May
11, 2012), well illustrates the individual issues. In that case, notwithstanding the
-5-

defendant University’s “uniform, widespread practice” of providing digitized book
excerpts as course readings (Add. 29a) and substantial similarities among the
excerpted books, the district court assessed fair-use based on facts specific to each
work. For example, the court reached different conclusions with respect to 37page excerpts from two different books—finding one instance not to be fair use
because the book earned significant digital licensing income (relevant to the fourth
factor), but finding the other use to be fair because it did not. See id. at *62, *67.
In other instances, the court reached different conclusions based on the amount
copied (relevant to the third factor)—use of 41 pages equaling 5.8% of the book
was fair because the portion “was decidedly small,” but use of a shorter excerpt
from a shorter book was not fair in part because the excerpt comprised 8.28% of
the total work (which the court found “not decidedly small”). Id. at *76, *161.
This is the kind of individual, “case-by-case” analysis fair use ordinarily requires
but that the district court in this case erroneously thought unnecessary.
Plaintiffs nevertheless contend that Google is somehow constrained by their
choice to “rely on common evidence as to fair use.” Opp. 14, 15. Plaintiffs are, of
course, free to frame their proof as they wish, but they may not impose that choice
on Google. A class may not be certified “on the premise that [the defendant] will
not be entitled to litigate its statutory defenses to individual claims.” See Wal-Mart
Stores v. Dukes, 131 S. Ct. 2541, 2561 (2011).

-6-

Plaintiffs also contend that because Google follows uniform guidelines, only
common evidence need be considered. Opp. 13, 17-18. Those guidelines,
however, include individualized analysis: The decision whether to place a book in
snippet view is made following a human review of the book; for example, Google
does not display snippets of reference works such as dictionaries and cookbooks,
where small snippets might substitute for purchasing the books. A108 ¶ 9. Indeed,
this kind of book-by-book analysis is exactly how a court would evaluate whether
the amount and substantiality of the work used (the third factor) supports a finding
of fair use.
Plaintiffs next argue that Google’s opposition to class certification is
inconsistent with Google’s position on the merits that Google Books “is a fair use
as to all books.” Opp. 16. As explained in the petition, however, there are
common and individualized reasons for finding fair use, and Google relies on both.
See Pet. 12-13. Google should not be deprived of one defense simply because
another defense is strong. That Google believes it could prevail even if forced to
defend itself with one arm tied behind its back does not mean that Plaintiffs may
require Google to do so—especially given the high stakes of this litigation.
Moreover, it is not true, as Plaintiffs suggest, that Google has abjured workspecific analysis. See Opp. 15-16. Certainly that contention finds no support in
the interrogatory answers that Plaintiffs cite, which state that (1) the nature of the

-7-

work (factor two) “tilts more [or less] strongly” in favor of a finding of fair use the
more or less factual is the book or the snippet displayed; (2) the nature of the work
“tilts more [or less] strongly” in favor of a finding of fair use depending on
whether the book is in- or out-of-print; and (3) the amount and substantiality of the
use (factor three) “tilts more [or less] strongly” in favor of a finding of fair use
depending on what percentage of the book appears in snippet view. Opp. 15
(citing SA204-215). All three analyses turn on facts unique to each book.
As for the fourth fair use factor, Plaintiffs appear to confuse Google’s
common conclusion—that Google Books benefits all authors by making their
books searchable, see, e.g., SA214—with the variety of individualized evidence
that proves that conclusion. An author might benefit from Google Books because
it helps the author “get [her] book reissued or reprinted,” A71 (resp. 10024); or
because it attracts readers to a self-published, online book, see, e.g., A71 (resp.
95); or because it generates interest in the author’s “online drawing classes,” A71
(resp. 188); or because it helps scholars more easily navigate books that lack an
index, see User Stories, available at http://books.google.com/googlebooks/
testimonials.html (last visited July 4, 2012); or because it is especially effective for
reaching certain types of readers, such as those interested in “academic books,”
books of “poetry,” “mysteries,” or books about “mathematic[s],” the “civil rights
era,” “Russia,” or the “lower east side.” See A73 (resp. 100572), A78 (resp.

-8-

100422), A79 (resp. 162), A82 (resps. 100251, 100279), A83 (resp. 100489), A84
(resp. 100617), A85 (resp. 100715, 100723, 100762). Moreover, factor four also
tilts more or less strongly in favor of a finding of fair use depending on the extent
to which an author benefits from Google Books, which will also vary widely
across authors and works. Far from disavowing interest in these work- and authorspecific market effects, Google has specifically sought discovery about such
effects from the only authors to have affirmatively put their individual experiences
at issue—the class representatives. See, e.g., A96 (Bouton Dep.).
Finally, Plaintiffs are wrong that subclasses for fiction, non-fiction, in-print,
and out-of-print works can “‘obviat[e] the need to evaluate each book
individually.’” Opp. 17 (quoting Add. 30a). Below, Plaintiffs argued that the fact
that a book is non-fiction should not favor a finding of fair use, see Pls.’ Reply ISO
Class Cert. 23-24 n.19 (ECF No. 1008), but surely that cannot be true for all nonfiction books, even those that are almost entirely informational, see, e.g., Selby,
Standard Mathematical Tables (1974), A105 (containing standard mathematical
tables); cf. Feist Publ’ns v. Rural Tel. Serv., 499 U.S. 340, 358 (1991). There is
thus no avoiding the need to determine where each non-fiction book falls on the
spectrum between, for example, “sparsely embellished maps and directories” and
“elegantly written biography.” Harper & Row, Publishers v. Nation Enters., 471
U.S. 539, 563 (1985). A sub-class of out-of-print books is no more useful, since

-9-

Plaintiffs presumably will not concede that that fact always favors a finding a fair
use. Most important, neither Plaintiffs nor the district court have identified any
manageable set of sub-classes that would permit the court to evaluate positive or
negative markets effects, which will vary book-by-book.
III.

THERE IS A COMPELLING NEED FOR IMMEDIATE APPELLATE REVIEW
As Google’s petition explained (Pet. 18-20), the fair use and adequacy issues

in this case present important recurring legal questions at the intersection of
copyright law and class action law and call out for immediate review. Plaintiffs
dismiss (Opp. 20 n.12) these considerations as “a merits issue,” but “[t]he fact that
an issue is relevant to both class certification and the merits … does not preclude
review of that issue” under Rule 23(f). Regents of Univ. of California v. Credit
Suisse First Boston (USA), 482 F.3d 372, 380 (5th Cir. 2007). Furthermore,
Google Books is a project of immense potential value to users and the public, and
the district court’s ruling creates the potential for billions of dollars in liability and
an injunction shutting it down. Given the pressures created by class certification,
this court may not have another opportunity to review the district court’s decision.
CONCLUSION
For the foregoing reasons and those presented in Google’s initial brief, the
Court should grant Google’s petition for review.

- 10 -

Dated: July 4, 2012

Respectfully submitted.

/s/ Seth P. Waxman
SETH P. WAXMAN
LOUIS R. COHEN
RANDOLPH D. MOSS
DANIEL P. KEARNEY, JR.
ARI HOLTZBLATT*
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
DARALYN J. DURIE
JOSEPH C. GRATZ
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
[phone]
* Admitted to practice only in Maryland

CERTIFICATE OF ELECTRONIC FILING
I hereby certify that on this 4th day of July 2012, I caused a pdf version of
the foregoing Reply in Support of the Petition of Defendant-Petitioner for
Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) to be filed
electronically using the CM/ECF system. Prior to transmittal, the pdf was scanned
for viruses and no viruses were detected.

/s/ Seth P. Waxman
SETH P. WAXMAN

CERTIFICATE OF SERVICE
I certify that on this 4th day of July 2012, I caused the foregoing Reply in
Support of the Petition of Defendant-Petitioner for Permission to Appeal to be filed
electronically using the CM/ECF system, which will send notification of such
filing to counsel of record.

/s/ Seth P. Waxman
SETH P. WAXMAN