The Second Circuit has vacated the district court’s class certification ruling in the Google Books case (Authors Guild v. Google), holding that Judge Chin must rule on Google’s fair use defense before considering class certification. The panel, comprising Judges Leval, Cabranes and Parker, noted that Google’s objections to class certification “may carry some force,” but ruled that the fair use defense should be resolved first, and that such resolution “will necessarily inform and perhaps moot [the Second Circuit’s] analysis of many class certification issues.”
At oral argument, the Second Circuit panel focused significantly on the fair use defense. The questioning seemed to indicate that the judges had a favorable view of the merits of Google’s fair use defense, but the Court properly sent the case back to allow the district court to address the issue first. Although this decision is short and to the point, the panel was well aware that both the fair use and class certification issues will wind up back before the Second Circuit after Judge Chin rules. Given the ongoing tug of war between Judge Chin and the rest of the Second Circuit on key decisions balancing the interests of copyright owners and new technology providers (Cablevision, Aereo, Google Books), it will be interesting to watch how this develops.
Perhaps the most interesting sentence in the entire decision is the penultimate: “In the interest of judicial economy, any further appeal from the decision of the District Court shall be assigned to this panel.” Given the panel’s apparently strong views on the importance and merit of the fair use defense (perhaps not surprising, given that Judge Leval is the father of modern fair use jurisprudence), the judges on this panel clearly intend to have the final word in this matter.
Here is a copy of the decision: