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What Your Trade Association Can Do For You: The Issue of Associational Standing to be Addressed in American Society of Media Photographers v. Google and Authors Guild v. Google

By Mary Rasenberger and Joseph Gregory

Last week in the Google Books case, the Authors Guild (the "Authors Guild") and the American Society of Media Photographers ("ASMP") filed oppositions to Google's motions to dismiss the copyright infringement claims brought by the Authors Guild and ASMP on behalf of themselves and their members. In Google's motions, filed in December, it argues that the associations lack the requisite standing to bring infringement claims on behalf of their members. Google argues that, in order for ASMP and the Authors Guild to be eligible for "associational standing"--on which it presumes the Authors Guild and ASMP rely to sue on behalf of their members, it must be shown that participation of each association's individual members in the lawsuit is not necessary to the claim asserted or to the relief requested. In this case, Google contests, each individual work alleged to have been infringed must be separately analyzed, including as to the fair use defense; and, as such, the associations lack standing to assert copyright infringement on behalf of their members.

In their briefs in support of their oppositions to Google's motions to dismiss, both ASMP and the Authors Guild respond that the associational standing "requirement" is merely a prudential requirement aimed at administrative convenience and that district courts have discretion is deciding whether or not it must be satisfied for a party to attain associational standing. ASMP further argues that the Supreme Court has allowed associational standing in cases such as this, recognizing the benefits of the participation of the association. The Author's Guild also counters Google's contention that each work needs to be analyzed separately under the fair use defense.

ASMP's Response

In its brief, ASMP first points out that Google's position is "particularly incongruous, given that Google has copied and distributed plaintiffs' works en masse without performing the individualized analysis it now avers is required." ASMP explains that "Google's consistent position to date has been that its actions are categorically protected as fair use irrespective of the individual work at issue." Ironically, Google's argument to support its motion to dismiss undermines its defense on the merits.

ASMP sets forth multiple legal theories as to why the District Court for the Southern District of New York should deny Google's motion. First, ASMP argues that the issue of whether the associations have "association standing" is wholly unnecessary with regard to the overall standing issue. ASMP cites numerous cases in support of a "well settled" principle that where at least one plaintiff has satisfied the standing requirements to bring a claim, a court need not consider whether other named plaintiffs (i.e., the associations) also have standing. In this case, individual representative members of ASMP are indeed named as co-plaintiffs to the suit, and Google apparently concedes the fact that such individual member plaintiffs do have standing to bring their respective infringement claims. Therefore, the issue of associational standing should be moot and the case should be allowed to proceed with the associations as co-plaintiffs.

Benefits Provided by Associational Standing

ASMP also relies on Supreme Court precedent that emphasizes the importance of permitting associations to have standing, along with individual plaintiffs, in order to ensure that individual members' claims are properly litigated. Among the justifications that the Supreme Court has provided in favor of allowing associational standing include: (i) the ability of associations to draw upon a preexisting reservoir of expertise and capital; and (ii) the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others. (See Int'l Union, United Auto, Aerospace & Agricultural Implement Works of Am. V. Brock, 477 U.S. 274, 289-90 (1986).)

ASMP also addresses Google's argument that since one of the requirements for associational standing--namely, a requirement that that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit--is lacking, the associations should be barred from proceeding as plaintiffs in the suit. ASMP cites Supreme Court case law, which indicates that this requirement is merely a matter of administrative convenience and efficiency, meaning, the requirement has no impact on constitutional standing and the district courts therefore have discretion in deciding whether or not to apply it. ASMP argues that practical obstacles prevent each and every individual association member concerned from instituting individual actions, and therefore any such prudential rationale regarding administrative convenience is outweighed. Thus, the district court should exercise its discretion and allow the association plaintiffs to proceed as parties to the suit.

The Authors Guild's Response

The Authors Guild similarly argues that no prudential considerations compel the dismissal of the Authors Guild as an associational plaintiff. Citing the fact that it has already actively participated in the case as an associational plaintiff for over six years, the Authors Guild argues that, not only will its continued participation present no administrative difficulties, but its participation furthers the interests of judicial economy. Like ASMP, the Authors Guild is quick to point out that Google did not make a book-by-book determination as to whether to include each book in its library; thus, to deny group relief to those collectively affected by Google's copying would be manifestly unjust.

The Authors Guild also deconstructs Google's fair use defense to determine whether, as Google claims, it must be analyzed on a case-by-case basis for each individual member of the Authors Guild. In analyzing fair use, courts consider the following factors: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the original work. Google argues that the individualized participation of every Authors Guild member is necessary to assess the second and fourth fair use factors.

The Authors Guild counters that, although the scope of fair use may be greater with respect to some works as compared to others, the Court is not required to separately analyze every book. Specifically, courts need not require individualized proof directed toward the second fair use factor, the nature of the work, in cases where large groups of works were infringed. In the cases cited by the Authors Guild, the courts either analyzed the works at issue by dividing them into separate large categories, or reviewed a sampling of the works to analyze the second factor. Neither approach requires the analysis as to each and every individual work.

With respect to the fourth fair use factor, the Authors Guild argues that the relevant evidence will be common to all of its individual members. Specifically, the Authors Guild argues that the potential market for and value of all in-copyright books will be adversely affected in similar ways by Google's use, and that this factor therefore can be fairly analyzed by the Court without the participation of each individual Authors Guild member.

What does this mean for future copyright litigation?

The Court's decision with regard to the associational standing theory in copyright infringement cases may have a profound impact on the ability of trade associations such as the Authors Guild and ASMP to enforce rights on behalf of their members. As discussed above, the reason why many people choose to join these organizations is for that exact reason; members seek to pool their interests and resources so as to receive protection when they need it most - i.e. when their interests are being violated in such a manner that litigation remains the only method of recourse. Further, given the expense associated with instituting individual lawsuits, the ability of such associations to adjudicate claims on behalf of their members may be the only way certain members might ever see relief.

Mary Rasenberger, Partner, Cowan DeBaets, Abrahams & Sheppard
Joseph Gregory, Law Student, New York Law School

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This page contains a single entry from the blog posted on February 16, 2012 9:47 PM.

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