On Monday, July 1, the United States Court of Appeals for the Second Circuit held that the authors who are a party to this suit may not be allowed to file a class action lawsuit against Google. The intermediate court reasoned that the lower court first needs to decide whether Google’s scanning of print books for the purposes of research, preview, and indexing is a fair use. After the fair use issue is decided, then if necessary, a decision may be revisited concerning class certification of the authors. By not allowing the authors to be certified as a class, Google may potentially face less monetary liability, if any liability at all. However, the intermediate circuit court has directed the lower court to first determine whether Google’s scanning of the books and its subsequent use of the books is fair use.
How does this benefit libraries?
It depends. One immediate benefit is the lower court now must determine whether Google’s scanning of these books for research, indexing, and previewing purposes is fair use. Therefore, if the court deems such use a fair use, libraries in the north Texas region can point to another persuasive case supporting fair use that involves scanning the full text of documents; and allowing access to snippets or portions of these documents for the purposes of access, research, indexing, previewing, and possibly other academic endeavors. I state that this is a persuasive case because whether Google’s scanning is fair use will be determined by the U.S. District Court for the Southern District of New York. A ruling in this case is persuasive and not mandatory for the U.S. District Courts in Texas and for the U.S. Court of Appeals for the Fifth Circuit, whose case decisions are mandatory for the University of North Texas. The U.S. Supreme Court would have to decide whether Google’s use was fair use for such a legal holding to be mandatory for the University of North Texas, and for other libraries in the north Texas region. Further, the Supreme Court may very well be petitioned to make such a determination regarding this case based on the monetary damages the plaintiffs expect to see in this case.
So, libraries will have to first wait and see how the District Court for the Southern District of New York holds in this case, fair use, or not? Then, it is highly possible an appeal will result regardless of how the lower court holds, and this case will proceed back in the United States Court of Appeals for the Second Circuit (such appeal will probably again address the class certification question). Libraries should hope for a lower court ruling stating that Google’s scanning and partial display of these materials is fair use, even if such a ruling is only persuasive to libraries in the north Texas geographic area. Such a ruling invites libraries to partake in similar practices that result in better services for patrons wanting to research, index, and view materials that are rare, common, out of print, or in-print.