The Authors Guild v. Google, Inc.

Filing 101

AMICUS BRIEF, on behalf of Amicus Curiae American Society of Journalists and Authors, Inc., FILED. Service date 02/15/2013 by CM/ECF. [848166] [12-3200]--[Edited 02/19/2013 by KG] [Entered: 02/15/2013 03:44 PM]

12-3200-CV
IN THE

United States Court of Appeals
FOR THE SECOND CIRCUIT

>>>>
THE AUTHORS GUILD, INC., ASSOCIATIONAL PLAINTIFF, BETTY MILES,
JOSEPH GOULDEN, and JIM BOUTON, individually and on behalf of
all others similarly situated,
Plaintiffs-Appellees,
v.

GOOGLE, INC.,
Defendant-Appellant.
On Appeal from the United States District Court for the Southern
District of New York (New York City), No. 1:05-cv-08136-DC

BRIEF FOR AMICUS CURIAE AMERICAN SOCIETY OF
JOURNALISTS AND AUTHORS, INC. IN SUPPORT OF
PLAINTIFFS-APPELLEES AND AFFIRMANCE

David Leichtman
Hillel I. Parness
Shane D. St. Hill
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
Counsel for Amicus Curiae American
Society of Journalists and Authors, Inc.

February 15, 2013

601 Lexington Avenue, Suite 3400
New York, New York 10022
212-980-7400
[e-mail]
[e-mail]
[e-mail]

CORPORATE DISCLOSURE STATEMENT
Amicus Curiae American Society of Journalists and Authors, Inc. (“ASJA”) is
a non-governmental, 501(c)(6) not for profit organization incorporated in the State
of New York with a membership of approximately 1,400 outstanding freelance
writers of magazine articles, trade books, and many other forms of nonfiction
writing. ASJA has no parent corporation, and no publicly held corporation owns
10% or more of its stock.

i

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .............................................................................. i
TABLE OF AUTHORITIES ........................................................................................................ iii
I.

INTEREST OF AMICUS CURIAE ........................................................................ 1

II.

STATEMENT OF ARGUMENT .......................................................................... 3

III.

ARGUMENT ......................................................................................................... 7
A.

B.

Attacking Plaintiffs-Appellees’ Adequacy Of Representation Is
Not The Proper Vehicle For Academic Authors To Object To The
Certified Class, Rather, Academic Authors Can Opt Out Of The
Class And Advocate Their Position In Other Ways. ............................... 16

C.

Attacking Plaintiffs-Appellees’ Adequacy Of Representation Is
Not The Proper Vehicle For Attacking The Merits Of PlaintiffsAppellees’ Claims. ................................................................................... 20

D.

IV.

The Trial Court Conducted A Meaningful Inquiry Into Whether
The Named Plaintiffs Are Adequately Representing The Interests
of The Class. .............................................................................................. 7

The Class Action Vehicle Is Critical For Enforcing The Rights Of
Artists And Copyright Owners In The Digital Age. ................................ 23

CONCLUSION .................................................................................................... 25

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) ........................................................... 27
CERTIFICATE OF ELECTRONIC FILING .............................................................................. 28

ii

TABLE OF AUTHORITIES
Page
Cases
Authors Guild v. Google, Inc.,
282 F.R.D. 384 (S.D.N.Y. 2012) (“Class Certification Order”) ........................................ passim
Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666 (S.D.N.Y. 2011)....................................................................................... 20
Authors Guild v. Hathitrust,
No. 11 CV 6351 (HB), 2012 U.S. Dist. LEXIS 146169 (S.D.N.Y. Oct. 10, 2012) ................. 22
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,
222 F.3d 52 (2d Cir. 2000)........................................................................................................ 17
Eldred v. Ashcroft,
537 U.S. 186 (2003) .................................................................................................................. 11
Hansberry v. Lee,
311 U.S. 32 (1940) .............................................................................................................. 17, 19
In re Beacon Assocs. Litig.,
282 F.R.D. 315 (S.D.N.Y. 2012) .............................................................................................. 24
In re Brand Name Prescription Drugs Antitrust Lit.,
115 F.3d 456 (7th Cir. 1997) .................................................................................................... 19
In re KMart Corp. Sec. Litig.,
No. 95-CS-75584-DT, 1996 U.S. Dist. LEXIS 22609 (E.D. Mich. Dec. 16, 1996) ................ 12
In re Tyco Int’l, Ltd. Multidistrict Litig.,
236 F.R.D. 62 (D. N.H. 2006) ............................................................................................ 10, 13
Metcalf v. Daley,
214 F.3d 1135 (9th Cir. 2000) .................................................................................................. 15
Oracle, Inc. v. Google, Inc.,
No. 3:10-cv-3561 (WHA), Dkt Item 1240 (N.D. Cal. Aug. 24, 2012) ....................................... 4
Tsereteli v. Residential,
No. 08 Civ. 10637 (LAK), 2012 U.S. Dist. LEXIS 91017 (S.D.N.Y. June 29, 2012) ............... 7
U.S. v. Am. Soc’y of Composers, Authors and Publishers (In re AT&T Wireless),
599 F. Supp. 2d 415 (S.D.N.Y. 2009) (Conner, J.) .................................................................... 24

iii

Rules
Fed. R. App. P. 29(a) ...................................................................................................................... 1
Fed. R. App. P. 29(c)(5) .................................................................................................................. 1
Rule 23(c)(2)(B)............................................................................................................................ 10
Rule 29.1 ......................................................................................................................................... 1
Constitutional Provisions
U.S. Const. art. I, § 8, cl. 8 .............................................................................................................. 8
Other Resources
The Federalist No. 43, p. 272 (C. Rossiter ed. 1961) ................................................................... 10
Theodore Eisenberg and Geoffrey P. Miller, The Role of Opt-Outs and Objectors in Class Action
Litigation: Theoretical and Empirical Issues, 57 VAND. L. REV. 1529, 1537 (2004) ............. 10

iv

I.

INTEREST OF AMICUS CURIAE
Amicus curiae American Society of Journalists and Authors, Inc. (“ASJA”),

founded in 1948, is a non-governmental, 501(c)(6) not for profit organization with
headquarters in New York City and with active regional chapters in Arizona,
Chicago, Illinois, New York City (local chapter separate from headquarters),
Northern California, Southern California, San Diego, California, the Rocky
Mountains region (Denver area), the Southeast (Atlanta area), the Upper Midwest
(Minneapolis area), upstate New York (Rochester area), and Washington, DC.1
ASJA has a membership of approximately 1,400 outstanding freelance
writers of magazine articles, trade books, and many other forms of nonfiction
writing, each of whom has met ASJA’s exacting standards of professional
achievement. The requirements for membership in the organization are stringent:
an author is required to demonstrate a substantial professional resume before being
admitted to membership. Nonfiction book authors qualify with two or more
traditionally published nonfiction books, or one book with a second under contract.

1

Pursuant to Fed. R. App. P. 29(c)(5) and Rule 29.1 of the Local Rules of the
United States Court of Appeals for the Second Circuit, amicus ASJA hereby states
that (1) no party or their counsel authored this brief in whole or in part; (2) no party
or party’s counsel contributed money intended to fund preparing or submitting this
brief; and (3) no person — other than amicus ASJA, its members, and its counsel
— contributed money intended to fund preparing or submitting this brief. Pursuant
to Fed. R. App. P. 29(a), amicus ASJA also states that all parties have consented to
the filing of this brief.

1

Article authors must provide a minimum of six substantial bylined articles written
on a freelance basis in national publications that pay for content. A reader
browsing any U.S. news stand would find many articles by ASJA members. See
generally, http://www.asja.org/our-members/member-news/.
ASJA offers extensive benefits and services focusing on professional
development, including regular confidential market information, meetings with
editors and others in the field, an exclusive referral service, seminars and
workshops, discount services and, above all, the opportunity for members to
explore professional issues and concerns with their peers.
Additionally, ASJA is the publisher and author of several works. Therefore,
ASJA is a member of the Author Sub-Class, and potentially may be a member of
the Publisher Sub-Class, and has a great interest in the outcome of this appeal.
ASJA opposes Defendant-Appellant Google, Inc.’s (“Google”) appeal of the
Order of the District Court (Chin, J., sitting by designation) granting Plaintiff’s
motion for class certification, and ASJA urges this Court to uphold the ruling
certifying the class. Specifically, ASJA writes in response to the Brief of Amici
Curiae Academic Authors In Support of Defendant-Appellant and Reversal
(“Academic Authors Br.”) because amici academic authors (“Academic Authors”)
provide a misguided discussion of the law governing the concept of adequate
representation in class actions.
2

II.

STATEMENT OF ARGUMENT
On May 31, 2012, Judge Chin, sitting by designation in the Southern District

of New York, granted Plaintiffs-Appellees’ motion for class certification
(hereafter, “Class Cert. Order”). Google has appealed this ruling, arguing that
class certification was improper. In support of Google’s appeal, Academic
Authors submitted a Brief of Amici Curiae opposing certification of the class as
improperly granted because they claim that the District Court “failed to conduct a
rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4)
requires.” Academic Authors Br. at 2. Based on their own apparent self-interest,
Academic Authors have misstated the concept of adequate representation in class
actions. ASJA submits this Brief of Amicus Curiae in response to Academic
Authors, and respectfully requests that the judgment of the District Court granting
class certification be affirmed.
Academic Authors are led by professors of law at a clinic, the Samuelson
Law, Technology & Public Policy Center at the University of California, Berkeley.
See generally, Academic Authors Br. at 18. The Center, and the clinic it is
associated with, tout themselves as representing clients such as The Electronic
Frontier Foundation, the Center For Democracy and Technology and Public
Knowledge, a number of whom are known to be financially supported by Google.
Compare http://www.law.berkeley.edu/samuelsonclinic.htm with Oracle, Inc. v.
3

Google, Inc., No. 3:10-cv-3561 (WHA), Dkt Item 1240 (N.D. Cal. Aug. 24, 2012)
(Google’s Response To Order To Supplement, listing Google-supported persons
and entities who commented on Google’s litigation with Oracle). ASJA does not
mean to suggest that the signatories to the brief do not legitimately hold the beliefs
they espouse, but only to point out to the Court their association with Google. It is
not surprising then that Academic Authors assert that they are strong advocates of
Google’s position on the merits. A perusal of some of the titles of the works they
have authored demonstrates their ideological bias. (E.g., “Access to Knowledge in
the Age of Intellectual Property”; “Free Culture: The Nature and Future of
Creativity”; “The Knockoff Economy: How Imitation Sparks Innovation”; “Open
Access”; “The Access Principle: The Case For Open Access To Research And
Scholarship.” See Academic Authors Br., Appendix A).
Even taken at face value, the stated motivation of Academic Authors for
opposing class certification is that they want free access to the entire corpus of
written works through Google Books without compensation to the authors, and
they also would like to make their own works available to the public through
Google Books. Opposing class certification in this litigation, however, is not the
proper vehicle for Academic Authors to advance their interests concerning the
merits of the copyright issues at the heart of this case. While Academic Authors
frame their “commit[ment] to maximizing access to knowledge” as being opposed
4

diametrically to the positions of certified class members, that purported dichotomy
is false. Academic Authors Br. at 7. Copyright Law has always been interpreted
to entwine the benefits of access with protections as an incentive for creative
individuals.2
The individual authors represented by ASJA have registered their
copyrighted works and depend on the licensing of their exclusive rights for their
livelihood. Academic Authors appear to make their living in other ways, and seem
willing to give away their works of authorship for free. That is, of course, their
prerogative. They can give Google a royalty-free license, advocate that others do
the same, and otherwise dedicate their works to the public however they see fit.
But their interest in the preservation of Google Books is not a legitimate argument
against the adequacy of representation of the named plaintiffs or the associational
plaintiff. Instead, Academic Authors’ proper course of action is to opt out of the
class action, cease to be class members, and advocate their position in other ways.
Rather than opting out of the class, Academic Authors submit a Brief of
Amici Curiae alleging that the District Court abused its discretion. Academic
Authors’ position is flawed because objecting to the adequacy of representation

2

The Academic Authors write that members of the class seek to “reap a windfall
from [Google]” (Academic Authors Br. at 12), whereas from the Plaintiffs’ point
of view, they seek to stop Google from building a business on the backs of the
work of authors without paying the authors for their creative labor. Resolution of
this issue is not the proper function of the class certification inquiry.
5

prong of the class certification analysis is not the proper vehicle for class members
who object to the merits of a class action lawsuit. Academic Authors accuse Judge
Chin of failing to make factual findings with respect to “adequacy,” but in fact,
when evaluating Plaintiffs-Appellees’ motion for class certification, Judge Chin
made a robust factual finding about the composition of the class. See The Authors
Guild v. Google, Inc., 282 F.R.D. 384, 392-95 (S.D.N.Y. 2012) .
Academic Authors further speculate that the personal views held by the
particular academic authors signing on to the brief represent the majority of the
certified class and that all scholarly, academic authors “desire broad public access
to their works such as that which the Google Books project provides.” Academic
Authors Br. at 2. Yet these bald assertions are not supported by fact, indeed, they
are not supported by any admissible evidence at all. Academic Authors only cite
questionably performed surveys not before the District Court (which likely would
have failed the Daubert test had the District Court been asked to consider them)
and their own letters to Judge Chin in support of these doubtful propositions.
Without admissible evidence supporting Academic Authors’ position that
they represent the views of a majority of the class, there is no basis for Academic
Authors to claim that Plaintiffs-Appellees are not adequately representing the
interests of the class. In any event, this question pertains to “numerosity,” not the
“adequacy of representation.”
6

For the reasons discussed in greater detail below, the District Court’s grant
of class certification should be affirmed.
III. ARGUMENT
A.

The Trial Court Conducted A Meaningful Inquiry Into Whether
The Named Plaintiffs Are Adequately Representing The Interests of
The Class.

Class action suits vindicate statutory policies in situations where the filing of
individual actions is inefficient or noneconomic. Tsereteli v. Residential, No. 08
Civ. 10637 (LAK), 2012 U.S. Dist. LEXIS 91017, at *49 (S.D.N.Y. June 29, 2012)
(ruling in favor of class certification because “[r]equiring [] claims to proceed as
separate cases on behalf of multiple plaintiffs therefore would be inefficient, would
fragment the recovery effort, and would diminish the incentives for pursuing the
claims.”). Here, the District Court did not abuse its discretion regarding the factual
inquiry surrounding class certification. Judge Chin properly considered the
certified class’ numerosity, commonality, typicality, and adequacy of
representation, correctly recognized the statutory policies at issue in this case, and
certified a class to reflect them.
The goals of Copyright Laws in the United States are twofold: to (1)
“promote the [p]rogress of [s]cience and useful [a]rts,” e.g., knowledge; (2) “by
securing for limited [t]imes to [a]uthors and [i]nventors the exclusive [r]ight to
their respective [w]ritings and [d]iscoveries.” U.S. Const. art. I, § 8, cl. 8. The
7

copyright system, thus, stands on two unshakeable and time-worn premises: (1)
that the creation and dissemination of works is a public benefit; and (2) that the
promotion of individual incentives is the best way to accomplish that end.
Academic Authors’ argument would upend that constitutional design and the
way that Congress has implemented it, as they seek to sever those conjoined
principles. Academic Authors argue that the District Court abused its discretion in
certifying the class because they assert that many most academic authors do not
write for profit, which is to say, to earn a portion of their income (an unproven
naked statement in any event), and extrapolate from that bold (but unsupported)
statement to argue that making works available is the sole goal of the
Constitutional support for copyright. Academic Authors Br. at 7 (“Academic
authors, almost by definition, are committed to maximizing access to knowledge.
The Authors Guild and the Association of American Publishers, by contrast, are
institutionally committed to maximizing profits.” (internal quotations omitted)).
This effort at describing polar opposites widely misses the mark. ASJA’s
members may or may not be interested in “maximizing profits,” but all are
certainly interested in earning a fair wage for their professional work and in putting
food on their families’ tables.3 Instead, authors should be focusing their time on

Google itself is a multinational corporation institutionally committed to
maximizing profits. See Verne G. Kopytoff, Revenue Rises at Google but Profit
Misses Forecasts, and Analysts Point to Spending, N.Y. TIMES, Apr. 14, 2011,
3

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creating works that enhance the public weal, not on individually bringing lawsuits
that are unlikely to return more in damages than the cost of pre-trial discovery.
Very few could afford to litigate against the likes of Google individually, taking
into account both the time and financial resources that such a litigation would
require. Moreover, it is well-known that academic salaries are not uniform among
the various academic disciplines, or even within the same department of a single
university. While a tenured professor might be content with completely free access
to her work, a colleague with the rank of assistant professor might hope that his
book’s royalties will provide the down payment on a house, or send children to
summer camp. It is fallacious to assume that all academics are so adequately
compensated that they can universally afford to make no money on their
copyrighted books.
In any event, Academic Authors’ biases merely represent a disagreement
with the merits of the claims held by all class members (including themselves)
against Google’s acknowledged mass acts of copyright infringement (which
Google argues should be excused for fair use). Thus, Academic Authors’ proper
course of action is simply to opt out of the litigation – no one is compelling them to
sue to vindicate their rights. See, e.g., In re Tyco Int’l, Ltd. Multidistrict Litig., 236
available at http://www.nytimes.com/2011/04/15/technology/15google.html?_r=0
(noting that Patrick Pichette, Google’s chief financial officer, stated “Google
would remain a technology company looking for new users and ‘billion dollar
businesses.’”).
9

F.R.D. 62, 69 (D. N.H. 2006) (regarding a potential conflict of interest, “equity
holders who do not want to be a part of the class can exercise their right under Rule
23(c)(2)(B) to opt out of the litigation.”); Theodore Eisenberg and Geoffrey P.
Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical
and Empirical Issues, 57 VAND. L. REV. 1529, 1537 (2004) (“[I]f class members
are not afforded the right to opt-out, this may result in a more stringent application
of the adequacy of representation requirement.”).
More fundamentally, Academic Authors’ position is wrong because the
public benefit of the creation and dissemination of works and promotion of
individual incentives have never been severable principles. As the Founders, this
Circuit and the Supreme Court have repeatedly recognized, “the public good . . .
fully coincides with the claims of individuals.” See, e.g., The Federalist No. 43, p.
272 (C. Rossiter ed. 1961) (“[T]he public good fully coincides . . . with the
[copyright] claims of individuals.”); Eldred v. Ashcroft, 537 U.S. 186, 212 n.18
(2003) (“Rewarding authors for their creative labor and promoting . . . [p]rogress
are thus complementary; . . . JUSTICE BREYER’s assertion that copyright statutes
must serve public, not private, ends . . . similarly misses the mark. The two ends
are not mutually exclusive; copyright law serves public ends by providing
individuals with an incentive to pursue private ones.”).
The author’s profit motive is what ensures access to particular works, and
10

that incentive has formed the basis of every United States copyright law since the
first enactment of the Constitutional principle by Congress in 1790. The current
version of the Copyright Act, and all of its predecessors, have given exclusive
rights to authors for limited times and prohibited others from exploiting those
works without authorization. The class certified by the District Court fits
comfortably within those contours.
Judge Chin fully considered the arguments now being made by Academic
Authors, and upon reviewing them he made the appropriate decision to reject them.
In particular, Judge Chin noted that the copyright claims of the Plaintiffs-Appellees
“do not conflict in any way with the copyright claims of the other class members.”
Authors Guild, 282 F.R.D. at 394. This is the case because Google’s conduct that
forms the basis for all class members’ claims is the same, and all class members’
have a claim of copyright infringement against Google based on that conduct. All
class members share the same copyright infringement claims against Google
stemming from the same conduct, rendering class adjudication appropriate. See,
e.g., In re KMart Corp. Sec. Litig., No. 95-CS-75584-DT, 1996 U.S. Dist. LEXIS
22609, at *27 (E.D. Mich. Dec. 16, 1996) (“The inclusion of equity (holders),
along with non-equity (sellers) class members, does not engender a substantial
conflict where the equity plaintiffs have a personal interest in the success of the
class action.”).
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Academic Authors try to set up a conflict by writing that “the only way for
the interests of academic authors to be vindicated in this litigation, given the
positions that the plaintiffs have taken thus far, is for Google to prevail on its fair
use defense and for the named plaintiffs to lose.” Academic Authors Br. at 3.
While Academic Authors may disagree with the rest of the certified class because
of their personal interest in free access to copyrighted works, or their views on the
role and scope of the fair use doctrine, this philosophical discrepancy is not
sufficient to create a conflict requiring a finding of inadequacy of representation
for class certification in this case. If Academic Authors want to freely license their
works to Google or dedicate them to the public, they are free to do so. ASJA and
its members, however, are entitled to litigate the legality of Google’s conduct, and
their ability to litigate in the more efficient class action format should not yield to
the Academic Authors’ views on the merits.
Judge Chin correctly noted that “some potential class members’ interests
may be different from other members’ interests. But this fact does not undermine
the overall efficacy of a class action. If any author feels that her interests are not
aligned with those of the other class members, she may request to be excluded.”
Id. at 394 n.8 (citing Letter from Pamela Samuelson, Professor of Law and
Information, UC Berkeley School of Law (Feb. 13, 2012) (on file with the court)).
No conflict exists in the class action sense – if Academic Authors do not want to
12

pursue their claims, they can opt out. See In re Tyco Int’l, Ltd. Multidistrict Litig.,
supra.
The number of authors who may share the views of Academic Authors is
irrelevant to the “adequacy of representation” inquiry. There is no limit on the
number of opt outs in a class action. While it is theoretically possible that so many
members of a class could disagree with the merits of an action that it would reduce
the number of claimants to make a class fail the “numerosity” test, Academic
Authors have failed to make their case. They make the twin claims that academics
constitute a “substantial part of the class” and that all authors of academic works
share the desire for open access to the entire corpus of written works without
compensation to authors. Yet, for these propositions, Academic Authors cite only
to their own letters as proof. Academic Authors Br. at 5-6. This is neither
admissible evidence, nor do their own letters even support their speculative
statement. See id. at 8 (“Despite the strong likelihood that academic authors
constitute a substantial portion of the class . . . .” (emphasis added)).
Judge Chin fully addressed this claim in his Class Cert. Order. See Authors
Guild, 282 F.R.D. at 393 (“The conflict that will prevent a plaintiff from meeting
the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should
be disregarded at the class certification stage.”). In fact, the record already
includes evidence of holders of copyrights in academic works who favor strong
13

protection of their copyrighted works. See, e.g., Br. for Appellees, dated Feb. 8,
2013, Dkt. 81 at 16 (stating that the widow of a Professor at Columbia University’s
Teacher’s College, who held copyright interests in her late husband’s textbooks,
testified that “[h]e was an academic author” who “wrote textbooks,” and that she is
an adequate representative of all authors, because, “I know a great many
academics, as I know a great many plain authors and I know that no matter what
kind of book they are writing, they are all concerned about their copyright and the
rights of holders of copyright to control their books.”).
Academic Authors do refer to some survey evidence, but this evidence was
not before the District Court and should not be considered now.4 In any event, the
surveys offered are akin to those already presented by Google that were rejected
properly by Judge Chin. Academic Authors stated that a 2011 survey, among
others, of academic authors, “which asked about attitudes toward open access
4

See, e.g., Metcalf v. Daley, 214 F.3d 1135, 1141 n.1 (9th Cir. 2000) (“The
Humane Society of the United States . . . made a motion for leave to file an amicus
brief, which we granted. However, we also granted appellees’ joint motion to
strike the extra-record documents that the Humane Society submitted with its
amicus brief.”); High Sierra Hikers Ass’n v. Powell, 150 F. Supp. 2d 1023, 1045
(N.D. Cal. 2001) (“At this stage, Amici are not parties and cannot introduce
evidence.”). In any event, if the court is inclined to consider Academic Authors’
extra-record evidence, ASJA notes that a Bowker report for 2011 shows that
347,178 books were published in United States that year. See generally,
http://www.bowker.com/en-US/aboutus/press_room/2012/pr_06052012.shtml. For
the same year, the Association of American University Presses indicates that its
members (which include publishers outside the United States) published a total of
12,000 books. See generally, http://www.aaupnet.org/about-aaup/aboutuniversity-presses/aaup-snapshot.
14

publishing, showed that over 75% of the more than 8,000 respondents indicated
that it was ‘very important’ or ‘important’ to be able to offer their work free online
to a global audience.” Academic Authors Br. at 13. No information is provided
that would support admissibility of this survey, which is no different in kind than
Google’s survey “in which slightly over 500 authors (58% of those surveyed)
‘approve’ of Google scanning their work for search purposes, and approximately
170 (19% of those surveyed) ‘feel’ that they benefit financially, or would benefit
financially, from Google scanning their books and making snippets available in
search.” Authors Guild, 282 F.R.D. at 394. Judge Chin’s criticism of Google’s
survey evidence is equally applicable to those now presented by the Academic
Authors: “it is possible that some authors who ‘approve’ of Google’s actions might
still choose to join the class action. Therefore, the court cannot conclude from the
survey that the representative plaintiffs’ interests are in conflict with any subset of
class members.” Id.
Academic Authors also try to advance the idea that scholarly writers
outnumber generalist writers “by a factor of more than ten to one” according to
their interpretation of figures from the Bureau of Labor Statistics. Academic
Authors Br. at 6. Besides the fact that this is also not admissible evidence, it
assumes that everyone reporting their job as “postsecondary” is a published author,
owns their own works, and agrees with Academic Authors’ position. There is
15

simply no support for these leaps in logic.
If Academic Authors “prefer to leave the alleged violation of their rights
unremedied [then that] is not a basis for finding the lead plaintiffs inadequate
[because] [t]he court need concern itself only with whether those members who are
parties are interested enough to be forceful advocates and with whether there is
reason to believe that a substantial portion of the class would agree with their
representatives were they given a choice.” Authors Guild, 282 F.R.D. at 394
(internal citation omitted). The District Court’s ruling granting certification of the
class should be affirmed.
B.

Attacking Plaintiffs-Appellees’ Adequacy Of Representation Is Not
The Proper Vehicle For Academic Authors To Object To The
Certified Class, Rather, Academic Authors Can Opt Out Of The
Class And Advocate Their Position In Other Ways.

On the issue of adequacy of representation, the only grounds on which
Academic Authors challenge the District Court’s decision relate to their “interests
[as] antagonistic to the interest of other members of the class . . . .” Baffa v.
Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000).
Academic Authors’ challenge to adequacy of representation is not fundamental,
but rather purely speculative. And it is in any event meritless because Academic
Authors can opt out of the certified class.
Academic Authors cite Hansberry v. Lee, 311 U.S. 32 (1940), as support for
their position that adequacy of representation is not met here. But Academic
16

Authors plainly misread Hansberry, which presents a factually distinguishable
situation. In Hansberry, the lawsuit at issue was “to enjoin the breach by
petitioners of an agreement restricting the use of land [by African-Americans]
within a described area of the City of Chicago . . . .” 311 U.S. at 37. Respondents
were successful at the lower state court levels in relying on an earlier litigation to
enforce the agreement, arguing that res judicata foreclosed any later challenge to
the enforceability of the agreement. Id. at 39-40. The Illinois Supreme Court
affirmed, retroactively finding that the earlier litigation was a “class” or
“representative” suit “where the remedy is pursued by a plaintiff who has the right
to represent the class to which he belongs, other members of the class are bound by
the results . . . .” Id. at 39. In particular, “petitioners in the [Hansberry] suit were
members of the class represented by plaintiffs in the earlier suit and consequently
were bound by its decree, which had rendered the issue of performance of the
condition precedent to the restrictive agreement res judicata . . . .” Id. at 39-40.
The United States Supreme Court reversed because Respondents were not
afforded their right to due process, which is plainly not at issue here for the
Academic Authors. In Hansberry, the plaintiffs in the earlier litigation “did not
designate the defendants in the suit as a class or seek any injunction or other relief
against others than the named defendants, and the decree which was entered did
not purport to bind others.” Id. at 45. Importantly, “defendants in the first suit
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were not treated by the pleadings or decree as representing others [opposed to the
agreement] or as foreclosing by their defense the rights of others . . . .” Id. at 46.
The Supreme Court specifically noted that, “[s]tate courts are free to attach such
descriptive labels to litigations before them as they may choose . . . . But when the
judgment of a state court . . . is challenged for want of due process it becomes the
duty of this Court to examine the course of procedure . . . .” Id. at 40.
Hansberry is inapposite because of the substantial procedural underpinnings
of the two cases, and because Academic Authors’ attempt to analogize the facts is
both indecorous and unavailing. Unlike the procedural situation in Hansberry, this
action has been a putative class action from its inception. Importantly, Academic
Authors have had adequate notice as members of the class from the inception of
the litigation, as evidenced by, among other things, their numerous letters to the
District Court and their Brief of Amici Curiae. Unlike Respondents in Hansberry,
Academic Authors had notice of the class litigation (and will later receive formal
notice of the certification if they are owners of their works) and are class members
with the right to opt out. This is among the proper remedies for a class member
seeking to end her membership in the class – an attack on adequacy of
representation of the named plaintiffs is not. See, e.g., In re Brand Name
Prescription Drugs Antitrust Lit., 115 F.3d 456, 457-58 (7th Cir. 1997) (“If the
certified class representative does not adequately represent the interests of some of
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the class members, those class members can opt out of the class action, can seek
the creation of a separately represented subclass, can ask for the replacement of the
class representative, or can intervene of right and become named plaintiffs
themselves, or even class representatives, represented by their own lawyer.”).
It is also surprising that Academic Authors view themselves as equals with
those aggrieved in Hansberry, where the alleged class seeking to enforce racially
restrictive real estate covenants would have included African-Americans, the very
group aggrieved by the compact sought to be enforced. Seeking free access to
copyrighted works against the wishes of authors and copyright owners does not
lend itself to a comparison to being forced to acquiesce to race-based
discrimination.
Similarly, Academic Authors improperly view their interests as comparable
to the unknown authors of unclaimed “orphan” works. See Academic Authors Br.
at 7. Academic Authors cite Authors Guild I for the proposition that “the court
further found that the named plaintiffs had inadequately represented the interests of
authors of unclaimed works.” The Authors Guild v. Google, Inc. 770 F. Supp. 2d
666, 680 (S.D.N.Y. 2011) (hereinafter, “Authors Guild I”). However this
proposition is taken grossly out of context.
In Authors Guild I, the court explained that one, among the many, of the
problems with the proposed settlement was that it did not properly account for
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orphan works, because under the proposed settlement “class members would be
giving up certain property rights in their creative works, and they would be deemed
– by their silence – to have granted to Google a license to future use of their
copyrighted works.” Id. But the District Court rejected the proposed settlement on
numerous grounds, and the orphan works problem is thus no longer an issue. The
named plaintiffs represent the rights of all class members, including the unknown
owners of orphan works, in connection with Google’s acts of copyright
infringement, and there is no factual basis on which to assert that owners of socalled orphan works would, as a group, want to relinquish their claims.
The only appropriate course of action for the Academic Authors is to opt
out, not challenge the class. The District Court’s grant of class certification should
be affirmed.
C.

Attacking Plaintiffs-Appellees’ Adequacy Of Representation Is Not
The Proper Vehicle For Attacking The Merits Of PlaintiffsAppellees’ Claims.

As noted above, if Academic Authors disagree with the merits of the claims
in the lawsuit or with the remedies sought against Google, they are free to exercise
those views in numerous ways. But attacking the merits of the lawsuit is not
properly before the Court at this time and is not pertinent to the “adequacy”
inquiry.
Academic Authors are free to opt out of the class and not pursue their
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particular claims of copyright infringement against Google. They can license their
works, free of charge, to Google, or anyone else, and dedicate their works to the
public. They can advocate that their fellow academic authors (and others) join
them in doing so. They can file amicus briefs in support of Google’s fair use
argument and provide Google with evidentiary support. And they can picket the
offices of the Authors’ Guild and use the Internet as a pulpit for their views. What
they have not done is make a good argument against the efficiency of the class
action vehicle.
Academic Authors incorrectly argue that the “most fundamental conflict of
interest that warrants decertification of the class concerns the merits of the
plaintiffs’ claims” because they believe that “Google’s fair use defense [is] more
persuasive [to the Academic Authors themselves] than the named plaintiffs’ theory
of infringement.” Academic Authors Br. at 14. But the reality is that no court
decision has ever stated that a technology provider may, for its own profit-seeking
reasons, indiscriminately make copies of works without the permission of the
copyright owner that the owner did not intend to make available digitally without
permission or payment.
In support of their dubious position, Academic Authors misleadingly quote
The Authors Guild v. Hathitrust, No. 11 CV 6351 (HB), 2012 U.S. Dist. LEXIS
146169 (S.D.N.Y. Oct. 10, 2012). In Hathitrust, which is on appeal in any event,
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the defendants entered into agreements with Google, which was not a party to the
lawsuit, “that allowed Google to create digital copies of works in [Defendants’]
libraries in exchange for which Google provides digital copies to Defendants.” Id.
at *8. “For works with known authors, Defendants use the works within the HDL
in three ways: (1) full-text searches; (2) preservation; and (3) access for people
with certified print disabilities.” Id. at *9. Defendants admitted that Plaintiffs
established a “prima facie case of infringement as to some . . . works,” but
Defendants asserted the defense of fair use. Id. at *40.
The views of the Hathitrust court on the copyright issues in that case do not
speak to class certification in this case, where the court has yet to address the
merits. Moreover, there are meaningful differences between this case and
Hathitrust that argue for further caution when making comparisons. Neither
Google nor the Academic Authors were parties to the Hathitrust action, which was
brought largely against university libraries and organizations for blind scholars.
Further, Defendants in Hathitrust were not seeking open access for anything close
to the scale of the Google Books project; rather, Defendants sought digitization of
their resources for non-commercial use by their students and patrons. Compare
U.S. v. Am. Soc’y of Composers, Authors and Publishers (In re AT&T Wireless),
599 F. Supp. 2d 415, 424-28 (S.D.N.Y. 2009) (Conner, J.) (rejecting AT&T’s
argument that preview clips of ringtones and ringbacktones were transformative fair
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use because “the music segments used in [AT&T’s] previews are exact copies of
ASCAP music,” and offering consumers the opportunity to listen to ringtones was
not “criticism, comment, news reporting, teaching . . . scholarship or research,” but
was rather AT&T’s commercial use which was a “deliberate use of ASCAP music .
. . to sell [AT&T’s] own product.”).
D.

The Class Action Vehicle Is Critical For Enforcing The Rights Of
Artists And Copyright Owners In The Digital Age.

The efficiencies and benefits of properly-constituted class actions are wellknown. See, e.g., In re Beacon Assocs. Litig., 282 F.R.D. 315, 326 (S.D.N.Y.
2012) (“Relevant considerations include judicial economy arising from the
avoidance of a multiplicity of actions, geographic dispersion of class members,
financial resources of class members, the ability of claimants to institute individual
suits, and requests for prospective injunctive relief which would involve future
class members.” (emphasis added)).
The need for the class action vehicle is even more critical in cases involving
Internet and new media technologies, where many of the traditional elements of
cases have become magnified. Entities employing new technologies are able to
engage in acts of infringement more rapidly, on a greater scale, and with
substantially-reduced costs (if costs are not eliminated altogether). Once the initial
infringements have taken place, these entities can instantly disseminate the
resulting copies on a vast scale with, once again, negligible costs.
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For the injured parties, however, the effects are reversed. It becomes
increasingly difficult, costly and time-consuming for copyright owners to keep up
with the rising tide of infringing activity and seek meaningful resolution of their
claims. While large scale copyright owners like record labels and music publishers
have their own problems playing “Whack-A-Mole,” the problems of enforcement
in today’s digital environment are especially magnified for authors and owners of
single, or limited numbers of, works. Those authors have neither the resources nor
the financial ability to mount any effort to enforce their rights unless they can do so
collectively. And unlike other laborers whose work conditions are protected by
unions, most authors are not protected by collective bargaining for fear that efforts
to do so will be attacked (whether meritorious or not) under the antitrust laws. So
associations like the named associational plaintiff The Authors Guild, ASJA and
others are all that authors have to serve as watchdogs for their rights. And only the
class action can be effective when those rights need to be vindicated in court.
Thus, as this problem is reflected in the “adequacy of representation”
inquiry, the district court recognized:
When Google copied works, it did not conduct an inquiry
into the copyright ownership of each work; nor did it
conduct an individualized evaluation as to whether
posting “snippets” of a particular work would constitute
“fair use.” It copied and made search results available en
masse. Google cannot now turn the tables and ask the
Court to require each copyright holder to come forward
individually and assert rights in a separate action.
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Because Google treated the copyright holders as a group,
the copyright holders should be able to litigate on a group
basis.
Authors Guild, 282 F.R.D. at 391.
This appeal on class certification is not the time to consider or decide whether
Google has a meritorious fair use defense, or whether the Academic Authors have
an entitlement to give away their own work for free and enjoy free access to the
works of others. What is relevant is that Google’s decision to proceed in the way
that it did, on the scale that it did, with full knowledge of its impact on the class,
makes it a quintessential example of why the class action vehicle exists, and why it
is a perfect fit for cases such as this, especially in this digital age.
IV. CONCLUSION
For the foregoing reasons, ASJA respectfully requests that the order of the
District Court granting certification of the class be affirmed.

Dated: February 15, 2013

Respectfully submitted,
/s/ David Leichtman
David Leichtman (DL 7233)
Hillel I. Parness (HP 1638)
Shane D. St. Hill (SS 1361)
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
601 Lexington Avenue, Suite 3400
New York, NY 10022
Telephone: [phone]
Facsimile: (212) 980–7499
[e-mail]
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[e-mail]
[e-mail]
Counsel for Amicus Curiae The American Society
of Journalists and Authors

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and 29(d) because this brief contains 6,101 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionally spaced typeface using Microsoft Word in
Times New Roman, 14 point font.

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CERTIFICATE OF ELECTRONIC FILING
I hereby certify that on this 15th day of February, 2013, I caused a PDF
version of the foregoing brief to be filed electronically using the CM/ECF system.

/s/ David Leichtman
David Leichtman

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