Author(s): Pamela Samuelson
Year: 2012
Abstract:
Filed in the Second Circuit Court of Appeals in Support of Defendant-Appellant Google.
Summary
of argument: Class certification was improperly granted below because
the District Court failed to conduct a rigorous analysis of the adequacy
of representation factor, as Rule 23(a)(4) requires. The three
individual plaintiffs who claim to be class representatives are not
academics and do not share the commitment to broad access to knowledge
that predominates among academics. Although the District Court, in
rejecting the proposed Google Books settlement last year, recognized
that the class representatives and their lawyers had not adequately
represented the interests of academic authors when negotiating the
proposed settlement, the court brushed aside concerns about adequacy of
representation when the case went back into litigation, despite an
academic author submission that challenged class certification because
of inadequacies in the plaintiffs’ representation of academic author
interests. These concerns should have been taken seriously because
academic authors make up a substantial proportion of the class that the
District Court certified; most of the books that Google scanned from
major research library collections were written by academics. Academic
authors overall greatly outnumber generalist authors such as the named
plaintiffs.
Academic authors desire broad public access to their
works such as that which the Google Books project provides. Although the
District Court held that the plaintiffs had inadequately represented
the interests of academic authors in relation to the proposed
settlement, it failed to recognize that pursuit of this litigation would
be even more adverse to the interests of academic authors than the
proposed settlement was. That settlement would at least have expanded
public access to knowledge, whereas this litigation seeks to enjoin the
Google Book Search operations and shut down access to works of class
members even though academic authors would generally favor greater
public access to their works. Because of this, the interests of academic
authors cannot be adequately accommodated in this litigation by opting
out of the class, as the District Court assumed. Indeed, 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.
For this reason, there is a fundamental
conflict between the interests of the named class representatives and
the interests of academic authors. Academic authors typically benefit
from Google Books, both because it makes their books more accessible to
the public than ever before and because they use Google Books in
conducting their own research. Google’s fair use defense is more
persuasive to academic authors than the plaintiffs’ theory of
infringement. The plaintiffs’ request for an injunction to stop Google
from making the Book Search corpus available would be harmful to
academic author interests.
In short, a “win” in this case for the
class representatives would be a “loss” for academic authors. It is
precisely this kind of conflict that courts have long recognized should
prevent class certification due to inadequate representation. The
District Court failed to adequately address this fundamental conflict in
its certification order, though it was well aware of the conflict
through submissions and objections received from the settlement fairness
hearing through to the hearings on the most recent class certification
motions. Because of that failure, the order certifying the class should
be reversed.
Keywords:
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2177032