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Google Books Case Developments: Google Responds to ASMP and Authors Guild

By Mary Rasenberger

In the Google Books case, Google filed its responses on February 17, 2012 to the American Society of Media Photographers' (ASMP) and the Authors Guild's oppositions to Google's motions to dismiss ASMP and the Authors Guild for lack of standing. (See What Your Trade Association Can Do For You, http://nysbar.com/blogs/EASL/2012/02/what_your_trade_association_ca.html). Google took issue with the Plaintiffs' assertions, in their oppositions, that the third prong of the Hunt test for association standing is merely a prudential consideration that the Southern District need not apply rigidly. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The Supreme Court in Hunt set out a three-part test for determining whether an association has standing to bring a claim on behalf of its members; the third prong at issue in Google's motions is a requirement that neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.

Google's Response

Google first argues that the requirements in Hunt are an important limitation on federal jurisdiction; whereas ASMP and the Authors Guild had argued that the third prong is instead a discretional consideration concerned with administrative convenience.
While Google concedes that the Supreme Court in United Food & Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 556-57 (1996), held that this third Hunt prong was not a "constitutional necessity," it argues that the Court still considers the prong to be an important limit on federal jurisdiction, rather than an optional inquiry for a court to simply disregard: "To see Hunt's third prong as resting on less than constitutional necessity is not, of course, to rob it of its value." 517 U.S. at 556. Thus, Google argues that, although the prong may be a prudential rule of self-governance susceptible to Congressional abrogation, the prong is nonetheless a rule that courts are not entitled to overlook.

The third prong of the Hunt test for associational standing requires that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Under Google's strict reading of this prong, it argues that the associations' copyright claims, and Google's fair use defense, require the participation of each individual ASMP and Authors Guild member because the injuries suffered by each association member is particular to the individual, requiring individualized proof in analyzing the copyright claims and fair use defenses.

First, Google argues that the copyright claims need to be analyzed on a case-by-case basis, particularly the issue of copyright ownership, as there are factual issues surrounding copyright ownership of the works, including whether they were "works for hire." Additionally, Google maintains that individual inquiries are relevant in analyzing its fair use defense. Three of the four fair use factors set out in Section 107 of the Copyright Act require in an inquiry that will vary from book to book. These three factors are: (i) the nature of the copyrighted work; (ii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iii) the effect of the use upon the potential market for or value of the original work. (17 U.S.C. ยง107 (2)-(4).) Google argues that because the facts differ from book to book, these inquiries require analysis of individualized evidence. In other words, it states that its fair use defense cannot be assessed in a collective manner.

Google distinguishes the cases that the associations rely on in support of the proposition that association standing is permissible in copyright cases similar to the Google Books case, including Itar-Tass Russian News Agency v. Russian Kurier, No. 95 Civ. 2144 (JGK), 1997 WL 109481 (S.D.N.Y. Mar. 10, 1997), rev'd in part, 153 F.3d 82 (2d Cir. 1998). ASMP had argued that Itar-Tass in particular is "most pertinent to this Court's analysis." In Itar-Tass, the district court held that an association of Russian journalists had associational standing to bring copyright infringement claims on behalf of its members. Google distinguishes Itar-Tass on the grounds that the factual issues regarding ownership in that case did not vary among the works at issue, and the case did not involve fair use.

The Second Circuit's Decision may have Important Implications for Associational Standing

As discussed above, courts have in some cases found associational standing to be appropriate in the context of copyright litigation. Questions remain, however, regarding how broad a trade association's right is to adjudicate copyright claims involving issues of ownership and fair use on behalf of its members. Judge Chin's decision on these motions thus likely will set important precedent in determining what the limits are on a trade association's associational standing in fair use cases.

Putting the Motions in the Context of the Litigation on the Merits

The positions taken by Google in its motions and responses are also interesting for what they say about Google's strategy in the case on the merits. Will it continue to assert on the merits, as it claims here, that individualized inquiry need be made with respect to ownership of each work and fair use need be analyzed on a work by work basis? Will it request discovery on a case-by-case basis in an attempt to drag the case on indefinitely? There are millions of works at issue in the case. The idea of the court's analyzing each work on a case by case basis is, of course, absurd - all the more absurd given that Google claimed fair use for its scanning and fragment use on an across-the-board basis, with no consideration of individual factors.

Scheduling Dispute Regarding ASMP's Request to Brief Fair Use before Class Certification

ASMP and Google filed letters with the court on February 17th and 22nd, respectively, regarding an expedited discovery and briefing schedule on the issue of fair use. ASMP proposed that any motions for summary judgment as to infringement or fair use be filed on an expedited schedule, before a decision on class certification. Google states that this proposal "is both unworkable and unjust," and that resolving the merits before considering the question of class certification is appropriate only "where the merits of the plaintiffs' claims can be readily resolved on summary judgment, where the defendant seeks an early disposition of those claims, and where the plaintiffs are not prejudiced thereby."

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This page contains a single entry from the blog posted on March 5, 2012 4:33 PM.

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