Google has won the right to appeal the granting of class status to thousands of authors suing the search engine company over its ambitious plan to create the world's largest digital books library.
In a brief order, the 2nd US Circuit Court of Appeals in New York granted Google permission to challenge a 31 May decision by US Circuit Judge Denny Chin letting authors sue as a group rather than individually.
Billions of dollars are at stake in the seven-year-old lawsuit. Google has already scanned more than 20 million books, and the Authors Guild, a group representing authors, has said Google should pay $750 for each book copied.
It is unclear when the 2nd Circuit will hear the appeal. Decertifying the class could make it harder for authors to win a large award against Google, either at trial or in a settlement. Chin had said it would be unjust to force Authors Guild members to sue individually, likely resulting in disparate results and much higher legal costs, "given the sweeping and undiscriminating nature of Google's unauthorised copying".
But Google countered in a court filing that many class members, perhaps even a majority, benefited economically, and that case-by-case determinations were needed to show whether it was making "fair use" of the plaintiffs' works.
Citing a 2011 US Supreme Court decision favouring Wal-Mart Stores that made it harder to pursue class-action cases, Google said that even if "droves" of authors raised common issues, there was no "common answer" to address them. "Plaintiffs seek to shut down a significant part of Google Books and to recover potentially billions of dollars," Google said. "With so much at stake, Google should not be forced to litigate without the full benefit of its principal defence."
Michael Boni, a lawyer for the Authors Guild, was not immediately available for comment. That group has argued that there is enough in common among the claims to let the class-action go ahead and defeat the fair use defence.
$125m settlement rejected
Google began creating the library after the Mountain View, California-based company agreed in 2004 with several major research libraries to digitise current and out-of-print works.
Libraries whose works have been scanned include Harvard University, Oxford University, Stanford University, the University of California, the University of Michigan and the New York Public Library.
In March 2011, Chin rejected a $125 million settlement of the case, saying it gave Google a "de facto monopoly" to copy books en masse without permission.
Among the individual plaintiffs in the case is former New York Yankees baseball pitcher Jim Bouton, the author of "Ball Four". Groups of photographers and graphic artists are also suing Google over its digitisation of the works.
Chin began handling the case as a trial judge and kept jurisdiction after he was elevated to the 2nd Circuit. Tuesday's order was issued by a two-judge panel of the appeals court.