The Authors Guild et al v. Google Inc.
OPINION # 101856. For the reasons stated above, Google's motions to dismiss the claims of the associational plaintiffs are denied and the AG Representative Plaintiffs' motion for class certification is granted. Re: #989 MOTION to Certify Class filed by Betty Miles, The Authors Guild, Joseph Goulden, Paul Dickson, Herbert Mitgang, Daniel Hoffman, #992 MOTION to Dismiss Fourth Amended Complaint filed by Google Inc. (Signed by U.S. Circuit Judge Denny Chin Sitting by Designation on 5/31/2012) (rjm) Modified on 5/31/2012 (rjm). Modified on 6/1/2012 (ft).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
THE AUTHORS GUILD et al.,
- against -
05 Civ. 8136 (DC)
10 Civ. 2977 (DC)
- - - - - - - - - - - - - - - - - -x
AMERICAN SOCIETY OF MEDIA
PHOTOGRAPHERS et al.,
- against :
- - - - - - - - - - - - - - - - - -x
CHIN, Circuit Judge:
Before the Court are two motions.
Google, Inc. ("Google") moves to dismiss the claims of the
associational plaintiffs in both of these cases.1
The Authors Guild is the only associational plaintiff
in the Authors Guild action. The associational plaintiffs in the
American Society of Media Photographers ("ASMP") action include:
ASMP, the Graphic Artists Guild, the Picture Archive Council of
America, the North American Nature Photography Association, and
Professional Photographers of America (collectively, the "ASMP
three representative plaintiffs in the Authors Guild action -Betty Miles, Joseph Goulden, and Jim Bouton (the "AG
Representative Plaintiffs") -- move for class certification.
the reasons stated below, Google's motions to dismiss the claims
of the associational plaintiffs are denied, and the motion for
class certification in the Authors Guild case is granted.
The Library Project
The following facts are not in dispute.
Google announced that it had entered into agreements with several
major research libraries to digitally copy books and other
writings in their collections (the "Library Project").
then, Google has scanned more than 12 million books.
Decl. Ex. 7 at 3).
It has delivered digital copies to the
participating libraries, created an electronic database of books,
and made text available for online searching.
See Authors Guild
v. Google, 770 F. Supp. 2d 666, 670 (S.D.N.Y. 2011) (citing Emily
Anne Proskine, Google's Technicolor Dreamcoat:
Analysis of the Google Book Search Library Project, 21 Berkeley
Tech. L.J. 213, 220-21 (2006) (describing project)).
users can search its "digital library" and view excerpts -"snippets" -- from books containing search results.
also Zack Decl. Ex. 7 at 3).
For example, when a user enters a
search term on the Google Books website, Google displays a list
of books containing that term.
In many cases, when the user
clicks on the link to a particular book, Google displays up to
three "snippets" of text from that book -- each about an eighth
of a page -- each of which contains the search term.
Decl. Ex. 1; Zack Decl. Exs. 7, 10-12).
Millions of the books scanned by Google were still
under copyright, and Google did not obtain copyright
permission to scan the books.
Authors Guild, 770 F. Supp. 2d at
670 & n.3.
The Authors Guild Action
In 2005, the Authors Guild and the AG Representative
Plaintiffs (together, the "Authors Guild Plaintiffs") brought a
class action, charging Google with copyright infringement.
Specifically, the Authors Guild Plaintiffs allege that by
reproducing in-copyright books, distributing them to libraries,
and publicly displaying "snippets" of those works for search,
Google "is engaging in massive copyright infringement."
AC ¶ 4).
The AG Representative Plaintiffs seek damages and
injunctive and declaratory relief.
injunctive and declaratory relief.
The Authors Guild seeks only
Also in 2005, several publishers initiated their own
They are not parties to the instant motions.
The Authors Guild Plaintiffs, the publishers, and
Google engaged in document discovery and, in the fall of 2006,
began settlement negotiations.
On October 28, 2008, after
extended discussions, the parties filed a proposed settlement
The proposed settlement was preliminarily approved by
Judge John E. Sprizzo by order entered November 17, 2008.
Notice of the proposed settlement triggered hundreds of
As a consequence, the parties began discussing
possible modifications to the proposed settlement to address at
least some of the concerns raised by objectors and others.
November 13, 2009, the parties executed an Amended Settlement
Agreement ("ASA") and filed a motion for final approval of the
ASA pursuant to Federal Rule of Civil Procedure 23(e).
I entered an order preliminarily approving the ASA on
November 19, 2009.
(ECF No. 772).
Notice of the ASA was disseminated.
As was the case
with the original proposed settlement, hundreds of class members
objected to the ASA.
A few wrote in its favor.
of Justice ("DOJ") filed a statement of interest raising certain
(ECF No. 922).
Amici curiae weighed in, both for and
against the proposed settlement.
on February 18, 2010.
I conducted a fairness hearing
The Authors Guild actively participated in
all these proceedings.
On March 22, 2011, I declined to grant final approval
of the ASA because, inter alia, "the ASA contemplates an
arrangement that exceeds what the Court may permit under Rule
Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 667
Specifically, I found that the ASA was "an
attempt to use the class action mechanism to implement forwardlooking business arrangements that go far beyond the dispute
before the Court."
Id. (citation and internal quotation marks
The ASMP Action
In 2010, several individual photographers and
illustrators (the "ASMP Representative Plaintiffs") and the ASMP
Associational Plaintiffs (together, the "ASMP Plaintiffs")
brought another class action charging Google with copyright
The ASMP Plaintiffs represent individuals who hold
copyright interests in certain photographs, illustrations, and
other visual works that appear within the books that Google has
They allege that Google's activity in connection with
the Library Project has infringed on their copyrights as well.
(ASMP FAC ¶¶ 4-5).
The ASMP Representative Plaintiffs seek
damages and injunctive and declaratory relief.
Associational Plaintiffs seek only injunctive and declaratory
Recent Procedural History
The Authors Guild Plaintiffs filed their Fourth Amended
Class Action Complaint on October 14, 2011.
(ECF No. 985).
ASMP Plaintiffs filed their First Amended Class Action Complaint
on November 18, 2011.
(ECF No. 29).
Google's principal defense
in each of these actions is "fair use" under § 107 of the
Copyright Act, 17 U.S.C. § 107.
On December 12, 2011, the AG Representative Plaintiffs
moved for class certification pursuant to Rule 23 of the Federal
Rules of Civil Procedure.
On December 22, 2011, Google moved to
dismiss all associational plaintiffs for lack of standing under
The Court held oral argument on both motions on
May 3, 2012, and reserved decision.
First, I will address Google's motions to dismiss the
claims of the associational plaintiffs for lack of standing.
Second, I will address the motion for class certification in the
Authors Guild case.
Motions to Dismiss
Ordinarily, for a plaintiff to have standing, the
plaintiff must "'be himself among the injured.'"
Defenders of Wildlife, 504 U.S. 555, 562 (1992) (quoting Sierra
Club v. Morton, 405 U.S. 727, 735 (1972)).
general rule is "associational standing."
One exception to this
Warth v. Seldin, 422
U.S. 490, 511 (1975) ("Even in the absence of injury to itself,
an association may have standing solely as the representative of
its members."); Nat'l Motor Freight Traffic Ass'n v. United
States, 372 U.S. 246 (1963) (per curiam).
'possibility of such representational standing . . . does not
eliminate or attenuate the constitutional requirement of a case
or controversy,' [the Second Circuit has] found that, under
certain circumstances, injury to an organization's members will
satisfy Article III and allow that organization to litigate in
federal court on their behalf."
Int'l Union, United Auto.,
Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S.
274, 281 (1986) (quoting Warth, 422 U.S. at 511) (internal
"[A]n association has standing to bring suit on behalf
of its members when:
(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit."
Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).
parties agree that the first two prongs of the Hunt test are
It is the third prong that is at issue and
requires further discussion.
The third Hunt prong is not a constitutional standing
requirement; it is prudential.
See United Food and Commercial
Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555
(2d Cir. 1996).
"[O]nce an association has satisfied Hunt's
first and second prongs assuring adversarial vigor in pursuing a
claim for which member Article III standing exists, it is
difficult to see a constitutional necessity for anything more."
Id. at 556, 558 (holding that Congress did not exceed its
authority by authorizing union to sue for violation of statute on
behalf of its members).
Indeed, Hunt's third prong focuses on
"matters of administrative convenience and efficiency, not on
elements of a case or controversy within the meaning of the
Id. at 555-57; Alliance for Open Soc'y Int'l,
Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 229 (2d Cir.
Nonetheless, to determine whether the third Hunt prong
is satisfied, courts look to the degree of "individualized proof"
required to assert the claim and grant the requested relief.
Open Soc'y, 651 F.3d at 229-30.
Claims for which damages are
sought, for example, often require proof of harm on an
individualized basis, thereby defeating any "administrative
convenience" achieved by allowing an association to sue on behalf
of individual members.
See Bano v. Union Carbide Corp., 361 F.3d
696, 714 (2d Cir. 2004) (denying standing because claims were for
bodily injury and property damage and observing, "[w]e know of no
Supreme Court or federal court of appeals ruling that an
association has standing to pursue damages claims on behalf of
By contrast, associational standing may be appropriate
in cases involving pure questions of law or claims for injunctive
In United Food, the Supreme Court identified three
potential purposes of the third Hunt prong. The Court explained
that the third prong (1) "may well promote adversarial
intensity"; (2) "may guard against the hazard of litigating a
case to the damages stage only to find the plaintiff lacking
detailed records or the evidence necessary to show the harm with
sufficient specificity"; and (3) "may hedge against any risk that
the damages recovered by the association will fail to find their
way into the pockets of the members on whose behalf injury is
claimed." United Food, 517 U.S. at 556-57.
relief in which little or no individualized proof is required.
See, e.g., Brock, 477 U.S. at 287-88 (union could litigate case
without participation of any member where only question was
whether Secretary properly interpreted statutory provision; once
legal issue resolved, amount of damages per union member could be
left to state authorities); Warth, 422 U.S. at 515 (denying
standing because plaintiffs sought damages, but noting that if an
association seeks an injunction, "it can reasonably be supposed
that the remedy, if granted, will inure to the benefit of those
members of the association actually injured"); Bldg. & Constr.
Trades Council v. Downtown Dev., Inc., 448 F.3d 138, 150-51 (2d
Cir. 2006) (standing where plaintiff only sought civil penalties
and injunctive relief).
"[S]o long as the nature of the claim
and of the relief sought does not make the individual
participation of each injured party indispensable to proper
resolution of the cause, the association may be an appropriate
representative of its members, entitled to invoke the court's
Warth, 422 U.S. at 511 (emphasis added).
Indeed, "[t]he fact that a limited amount of individual
proof may be necessary does not, in itself, preclude
Nat'l Ass'n of Coll. Bookstores, Inc.
v. Cambridge Univ. Press, 990 F. Supp. 245, 249-51 (S.D.N.Y.
1997) (associational standing where some individual participation
necessary to prove that transactions were "contemporaneous" for
purpose of Robinson-Patman claim); see also Hosp. Council v. City
of Pittsburgh, 949 F.2d 83, 89-90 (3d Cir. 1991) (associational
standing where evidence from individual member hospitals would be
necessary to support discrimination claim); N.Y. State Nat'l Org.
of Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989)
(associational standing where affidavits and stipulations were
sufficient to provide a basis for relief).
Here, there is no dispute that the associational
plaintiffs in these two actions have satisfied the first two
prongs of the Hunt test.
I conclude that the third prong is
satisfied here as well, and the associational plaintiffs
therefore have standing.
Specifically, the associations' claims
of copyright infringement and requests for injunctive relief will
not require the participation of each individual association
To the extent there is any ambiguity on this issue, I
resolve it in favor of the associational plaintiffs, as
application of the third Hunt prong is prudential and the
equities in this case weigh in favor of finding that the
associations have standing.
The associational plaintiffs assert claims of copyright
infringement on behalf of their individual members.
that Google engaged, and continues to engage, in the wholesale
copying of books (including any images contained therein) without
the consent of the copyright holders, many of whom are
(See AG 4th AC ¶¶ 5-6, 18-19; ASMP FAC ¶¶
Unlike the representative plaintiffs, the
associational plaintiffs request only injunctive and declaratory
They seek "an injunction barring Google from continued
infringement of the copyrights of plaintiffs and the Class."
4th AC ¶ 52; ASMP FAC ¶ 82).
In addition, they seek "a judgment
declaring that Google's actions are unlawful."
ASMP FAC ¶ 85).
(AG 4th AC ¶ 55;
Neither the claims asserted nor the relief
requested by the associational plaintiffs require a degree of
individual participation that precludes associational standing
Limited individual participation will be necessary to
establish the associations' copyright infringement claims.
establish infringement, a plaintiff must show: "(1) ownership of
a valid copyright, and (2) copying of constituent elements of the
work that are original."
Arista Records, LLC v. Doe 3, 604 F.3d
110, 117 (2d Cir. 2010); see Fonar Corp. v. Domenick, 105 F.3d
99, 104 (2d Cir. 1997).
The second element would not require
individual participation because it is undisputed.
not deny that it copied millions of books -- original works -without the permission of the copyright holders.
has displayed snippets of text from those books as well as images
contained in the books, without the copyright holders'
For those association members who still own all or part
of the copyright to their work, the first element will not
require individual participation.
information is available publicly on the United States Copyright
See www.copyright.gov/records (for books
registered since Jan. 1, 1978); see also books.google.com/googleb
ooks/copyrightsearch.html (for books registered before 1978).
Furthermore, copyright registrations constitute prima facie
evidence of copyright ownership, 17 U.S.C. § 410(c), and the
Court may take judicial notice of them, Island Software &
Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d
To the extent Google wishes to rebut such evidence (see
Perle Decl. ¶ 25), it may seek to do so on a case-by-case basis.
For those association members who have assigned their
copyrights to a third party, but still retain a beneficial
interest in their work -- e.g., by receiving royalties -- some
individual participation may be required.4
If such beneficial
ownership cannot be established through public records or
Google's records, the association member arguably would have to
come forward with a publishing contract or other document proving
that he retains a beneficial interest in his work.5
of individual participation, however, does not defeat
See Coll. Bookstores, 990 F. Supp. at
249-50; Hosp. Council, 949 F.2d at 89-90.
individual members to present documentary evidence of their
beneficial copyright interest would not make this case
administratively inconvenient or unmanageable.
-- forcing association members to pursue their claims
individually -- would be burdensome and inefficient.
Individuals who receive royalties retain standing to
sue for copyright infringement. See Cortner v. Israel, 732 F.2d
267, 271 (2d Cir. 1984) (citing 17 U.S.C. § 501(b)); Harris v.
Simon & Schuster, Inc., 646 F. Supp. 2d 622, 632 (S.D.N.Y. 2009).
If an association member cannot show that he retains a
beneficial interest in the copyright -- for example, if he has
entered into an "all rights" contract, see May 3, 2012, Oral Arg.
Tr. at 16, or created the work as a "work for hire," 17 U.S.C. §
201(b) -- a substantial question will be raised as to whether he
should be included in the group on behalf of which the
association is suing.
Google claims that its fair-use defense would require
the participation of individual association members as well.
Specifically, Google contends that two fair-use factors, "the
nature of the copyrighted work" and "the effect of the use upon
the potential market for or value of the copyrighted work," 17
U.S.C. § 107, require an individualized inquiry.
(Def.'s Br. at
It points out, for example, that creative works and non-
creative works are often treated differently in the fair-use
(Id. at 12-13).
Furthermore, it argues that snippet
display might, for example, affect the market for in-print books
more than it affects the market for out-of-print books.
While different classes of works may require different
treatment for the purposes of "fair use," the fair-use analysis
does not require individual participation of association members.
The differences that Google highlights may be accommodated by
grouping association members and their respective works into
For example, in the Authors Guild action, the Court
could create subgroups for fiction, non-fiction, poetry, and
In the ASMP action, it could separate photographs
The Court could effectively assess the
merits of the fair-use defense with respect to each of these
categories without conducting an evaluation of each individual
In light of the commonalities among large groups of works,
individualized analysis would be unnecessarily burdensome and
See Nat'l Ass'n of Letter Carriers, AFL-CIO v. U.S.
Postal Serv., 604 F. Supp. 2d 665, 674-76 (S.D.N.Y. 2009)
(standing not defeated by affirmative defense that may raise
individualized issues; case-by-case analysis more appropriate at
the merits stage).
Finally, no individual participation would be required
at the relief stage.
If a certain group of association members
establishes infringement, and Google fails to prevail on its
fair-use defense with respect to that group, the Court could
simply enjoin Google from displaying snippets of those
association members' works.
As the associational plaintiffs only
seek injunctive relief, no individual damage assessment would be
See Bldg. & Constr. Trades Council, 448 F.3d at 150.
Even if there were room for disagreement over whether
the third Hunt prong has been met in this case, associational
standing would still be appropriate.
As noted above, the third
Hunt prong is not an Article III standing requirement; it is
Therefore, this Court has a certain degree of
discretion in granting associational standing where, as is
undisputedly the case here, the first two prongs are met.
The Supreme Court has acknowledged that associational
standing confers certain advantages on individual members and the
judicial system as a whole.
Specifically, an association "can
draw upon a pre-existing reservoir of expertise and capital" that
its individual members lack.
Brock, 477 U.S. at 289.
Furthermore, its participation assures "'concrete adverseness'"
and "'sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult . . . questions.'"
Id. (quoting Harlem Valley Transp. Ass'n v. Stafford, 360 F.
Supp. 1057, 1065 (S.D.N.Y. 1973)).
Indeed, the Authors Guild has played an integral part
in every stage of this litigation since its inception almost
seven years ago.
It spent several of those years negotiating
with Google on behalf of its members.
Only when it became
apparent, in 2011, that no settlement would be achieved did
Google object to the Authors Guild's participation in the
While the ASMP Associational Plaintiffs have not
litigated against Google for as many years as the Authors Guild,
their participation nonetheless confers the important benefits
articulated in Brock.
Furthermore, given the sweeping and undiscriminating
nature of Google's unauthorized copying, it would be unjust to
require that each affected association member litigate his claim
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."
copied and made search results available en masse.
now turn the tables and ask the Court to require each copyright
holder to come forward individually and assert rights in a
Because Google treated the copyright holders as
a group, the copyright holders should be able to litigate on a
Motion for Class Certification
A plaintiff seeking class certification must meet the
prerequisites of Rule 23(a) of the Federal Rules of Civil
Procedure -- numerosity, commonality, typicality, and adequacy of
See Fed. R. Civ. P. 23.
If the prerequisites of
Rule 23(a) are met, the court then must determine whether the
putative class can be certified and maintained under any one of
the three subsections of Rule 23(b).
In re Literary Works In
Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir.
Here, plaintiffs seek class certification pursuant to
subsection (b)(3) of Rule 23.
The party seeking class certification bears the burden
of showing, by a preponderance of the evidence, that the
requirements of Rule 23 are met.
Teamsters Local 445 Freight
Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-04 (2d
The Second Circuit has clarified the standards
governing adjudication of a motion for class certification:
(1) a district judge may certify a class only
after making determinations that each of the
Rule 23 requirements has been met; (2) such
determinations can be made only if the judge
resolves factual disputes relevant to each
Rule 23 requirement and finds that whatever
underlying facts are relevant to a particular
Rule 23 requirement have been established and
is persuaded to rule, based on the relevant
facts and the applicable legal standard, that
the requirement is met; (3) the obligation to
make such determinations is not lessened by
overlap between a Rule 23 requirement and a
merits issue, even a merits issue that is
identical with a Rule 23 requirement . . . .
In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d
Rule 23(a) Prerequisites
Rule 23(a)(1) requires the putative class to be "so
numerous that joinder of all members is impracticable."
Civ. P. 23(a)(1).
Numerosity can be presumed if the class
comprises at least forty members.
Consol. Rail Corp. v. Town of
Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
Courts do not
require "evidence of exact class size or identity of class
Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).
If there is any dispute as to the size of the proposed class,
however, the court must resolve it and make a finding as to the
See In re IPO Sec. Litig., 471 F.3d at 41.
Under Rule 23(a)(2), there must be "questions of law or
fact common to the class."
Fed. R. Civ. P. 23(a)(2).
does not require all questions of law or fact to be common.
Indeed, even a single common question will suffice.
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011) (citations
and internal quotation marks omitted); Marisol A. v. Giuliani,
126 F.3d 372, 376 (2d Cir. 1997) ("The commonality requirement is
met if plaintiffs' grievances share a common question of law or
Commonality requires that the class members have
"suffered the same injury," Gen. Tel. Co. of Southwest v. Falcon,
457 U.S. 147, 157 (1982), and that their claims depend on "a
common contention," Wal-Mart, 131 S. Ct. at 2551.
contention, moreover, must be of such a nature that it is capable
of classwide resolution -- which means that determination of its
truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke."
Therefore, what matters is "'the capacity of a classwide
proceeding to generate common answers apt to drive the resolution
of the litigation.'"
Id. (emphasis in original) (quoting Richard
A. Nagareda, Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97, 132 (2009)).
Importantly, Rule 23(a)(2) does not require that the
claims of the lead plaintiffs "be identical to those of all other
Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 176
Indeed, "'factual differences in the claims of
the class do not preclude a finding of commonality.'"
RCN Telecom Servs., Inc., 238 F.R.D. 57, 73 (S.D.N.Y. 2006)
(quoting 5 Moore's Federal Practice § 23.23).
be found where the plaintiffs' alleged injuries "derive from a
unitary course of conduct by a single system."
Marisol A., 126
F.3d at 377.
The commonality and typicality requirements of Rule
23(a) tend to merge such that similar considerations inform the
analysis for both prerequisites.
Wal-Mart, 131 S. Ct. at 2551
n.5; Marisol A., 126 F.3d at 376.
Rule 23(a)(3) requires that
"the claims or defenses of the representative parties are typical
of [those] of the class."
Fed. R. Civ. P. 23(a)(3).
typicality requirement "is satisfied when each class member's
claim arises from the same course of events, and each class
member makes similar legal arguments to prove the defendant's
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d
147, 155 (2d Cir. 2001) (quoting Marisol A., 126 F.3d at 376)
(internal quotation marks omitted); see In re Flag Telecom
Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009)
(quoting Robidoux, 987 F.2d at 936).
"[M]inor variations in the
fact patterns underlying [the] individual claims" do not preclude
a finding of typicality.
Robidoux, 987 F.2d at 936-37.
contrast, "unique defenses" that "threaten to become the focus of
the litigation" may preclude such a finding.
Flag Telecom, 574
F.3d at 40 (citation and internal quotation marks omitted).
Finally, Rule 23(a) requires that the class
representatives will "fairly and adequately protect the interests
of the class."
Fed. R. Civ. P. 23(a)(4).
an inquiry as to whether:
This question involves
"1) plaintiff's interests are
antagonistic to the interest of other members of the class and 2)
plaintiff's attorneys are qualified, experienced and able to
conduct the litigation."
Baffa v. Donaldson, Lufkin & Jenrette
Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000).
This inquiry "serves to uncover conflicts of interest
between named parties and the class they seek to represent."
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).
every conflict, however, precludes a finding of adequacy.
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 re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145
(2d Cir. 2001) (citations and internal quotation marks omitted),
superseded on other grounds by rule, Fed. R. Civ. P. 23(g), as
stated in Attenborough v. Const. and Gen. Bldg. Laborors' Local
79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006).
A class action may be maintained under Rule 23(b)(3) if
"the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
Fed. R. Civ. P. 23(b)(3).
The predominance requirement is satisfied "if
resolution of some of the legal or factual questions that qualify
each class member's case as a genuine controversy can be achieved
through generalized proof, and if these particular issues are
more substantial than the issues subject only to individualized
Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010)
(quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.
2002)) (internal quotation marks omitted).6
That an affirmative
defense may arise that affects different class members
differently "does not compel a finding that individual issues
predominate over common ones."
In re Nassau Cnty. Strip Search
Rule 23(b)(3) requires that the district court
determine what questions of law or fact are common to the members
of the class. Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards &
Sons, Inc., 502 F.3d 91, 106 (2d Cir. 2007) (internal quotation
marks and alteration omitted).
Cases, 461 F.3d 219, 225 (2d Cir. 2006) (citation and internal
quotation marks omitted).
Together with the "superiority" requirement, the
predominance requirement "ensures that the class will be
certified only when it would 'achieve economies of time, effort,
and expense, and promote . . . uniformity of decision as to
persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results.'"
502 F.3d at 104 (quoting Amchem Prods.,, 521 U.S. at 615).
In this case, the proposed class is defined as "[a]ll
persons residing in the United States who hold a United States
copyright interest in one or more Books reproduced by Google as
part of its Library Project, who are either (a) natural persons
who are authors of such Books or (b) natural persons, family
trusts or sole proprietorships who are heirs, successors in
interest or assigns of such authors."
(See Notice of Mot. for
Class Cert. at 2).7
A "Book" is defined as a "full-length book published in
the United States in the English language and registered with the
United States Copyright Office within three months after its
first publication." Id. Google's directors, officers, and
employees are excluded from the class, as well as United States
Government and Court personnel. Id.
The Rule 23(a) Requirements Are Satisfied
Google does not dispute that the proposed class
satisfies the numerosity, commonality, and typicality
requirements of Rule 23(a).
Indeed, those requirements are met
The class meets the numerosity requirement.
will likely number in the thousands, at least, as Google has
scanned millions of books.
The class also meets the commonality requirement.
Every potential class member's alleged injury arises out of
Google's "unitary course of conduct."
Marisol A., 126 F.3d at
Specifically, every potential class member has allegedly
been injured by Google's Library Project, whereby Google, without
authorization, copied books in which the class members own
Whether Google's actions constitute an
infringement of these copyright interests and whether Google's
use of "snippets" of these works constitutes "fair use" are
"common questions" capable of class-wide resolution.
131 S. Ct. at 2551.
Similarly, the typicality requirement is satisfied, as
"each class member's claim arises from the same course of
Google's copying of books pursuant to its Library
See Robinson, 267 F.3d at 155.
Google disputes, however, whether the adequacy
requirement has been satisfied.
It argues that "most  class
members perceive [Google's copying of their work] as a benefit."
(Def.'s Cert. Opp'n at 9).
Accordingly, it contends that there
is "a fundamental conflict between the interests the named
plaintiffs seek to advance and the interests of absent class
members," rendering the representation inadequate.
Opp'n at 8).
In support of this argument, Google points to a
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.
(Decl. of Hal Poret, Ex. 1 at 14).
Google's argument is without merit.
plaintiffs are adequate representatives of the class.
their copyright claims do not conflict in any way with the
copyright claims of the other class members.
This is not a case
where the lead plaintiffs, in pursuing their own claims, might
compromise the claims of another group of class members.8
Indeed, Google has not pointed to any legal or factual argument
made by the lead plaintiffs that would undermine the copyright
claim of any other class member.
Second, that some class members may prefer to leave the
alleged violation of their rights unremedied is not a basis for
finding the lead plaintiffs inadequate.
"'The 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
Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 563 n.7
(2d Cir. 1968) (quoting Jack B. Weinstein, Revision of Procedure:
Some Problems in Class Actions, 9 Buffalo L. Rev. 433, 460
Accordingly, the survey results cited by Google do not
preclude a finding of adequacy.
In any case, the survey does not prove that any
individual author would not want to participate in the instant
To be sure, some potential class members' interests may
be different from other members' interests. (See Letter from
Pamela Samuelson, Professor of Law and Information, UC Berkeley
School of Law (Feb. 13, 2012) (on file with the court)). 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. See Rule 23(c)(2)(B).
Importantly, the survey did not ask the
respondents whether they would want to be part of a law suit
through which they might recover damages.
Indeed, 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.
The Requirements of 23(b)(3) Are Met
Finally, class certification is warranted in this case
because the predominance and superiority requirements of Rule
23(b)(3) are satisfied.
The common issues presented in this litigation
predominate over any individual ones.
common questions include:
As discussed above, these
(1) whether Google's actions in
connection with the Library Project constituted copyright
infringement; and (2) whether the affirmative defense of "fair
These issues are largely subject to "generalized
See Cordes, 502 F.3d at 107-08.
Every potential class
member's claim arises out of Google's uniform, widespread
practice of copying entire books without permission of the
copyright holder and displaying snippets of those books for
Whether this practice constitutes copyright infringement
does not depend on any individualized considerations.
Furthermore, the question of "fair use" may be evaluated on a
The Court would determine whether the
defense applies to a particular type of book, obviating the need
to evaluate each book individually.
representative plaintiffs only ask for statutory damages, there
is no need for any individualized inquiry into the harm suffered.
See Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 130 (S.D.N.Y.
Google argues -- as it did in its motions to dismiss -that the issue of copyright ownership is not subject to
generalized proof because publishing contracts can create varying
degrees and types of ownership interests, not all of which would
permit the author to sue for infringement.
(Def.'s Cert. Opp'n
Accordingly, to obtain relief, it may be that an author
will have to submit some documentation proving that he retains a
beneficial interest in the copyrighted work.
issue, however, does not predominate over the "common" ones
Google also contends that many authors do not receive
royalties for "promotional" uses, and therefore have no
beneficial interest in the right to use their work for
promotional purposes. (Def.'s Cert. Opp'n at 14). It argues
Class action is the superior method for resolving this
It is, without question, more efficient and
effective than requiring thousands of authors to sue
Requiring this case to be litigated on an
individual basis would risk disparate results in nearly identical
suits and exponentially increase the cost of litigation.
Cromer Fin. Ltd. v. Berger, 205 F.R.D. 113, 133 (S.D.N.Y. 2001).
Class action, by contrast, would achieve economies of time and
effort, resolving common legal and factual issues "without
sacrificing procedural fairness or bringing about other
Cordes, 502 F.3d at 104.
For the reasons stated above, Google's motions to
dismiss the claims of the associational plaintiffs are denied and
that the display of snippets "facilitates sales" and is therefore
a promotional use in which these authors have no beneficial
interest. (Id.). This argument fails as it is based on the
unestablished premise that the display of snippets facilitates
sales. Furthermore, while these authors may have authorized a
publisher to promote their works, they have not authorized Google
to do so.
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