Court Says Authors Guild Has Standing To Sue Over Google Books, Despite It Not Representing Authors' Views

from the unfortunate dept

Fri, Jun 1st 2012 5:05am — Mike Masnick

About a month ago, we wrote about how Google was trying to convince the judge in the Google book scanning case that the Authors Guild did not have standing to sue on behalf of authors. This was, in part, because different authors would have very different issues (especially on the fair use analysis), but also because lots and lots of authors didn't seem to have a problem with what Google was doing (especially considering studies that have shown being in Google Books helps sell more books).

However, the judge in the case has ruled, mostly on a procedural basis, that the Authors Guild does, in fact, have standing to sue. It argues that associations have long been allowed to sue on behalf of their members, and the fair use analysis questions aren't really a big deal. At worst, the court says it could split up the "classes" into different groups, so that those with specific issues could be judged separately. Of course, you could just as easily make the argument that this reasoning should have resulted in the opposite conclusion. If the court is going to lump different groups of authors into different camps, then shouldn't each of those groups create their own class action suits, rather than putting them all under the Authors Guild's umbrella? No one is arguing that there can't be a class action lawsuit if the relevant class is assembled. There's just a big question over whether or not the Authors Guild really represents the interests of the people included in the classes. And the judge doesn't really address that question, other than to say those who don't have a problem with Google Books can more or less opt-out of the class.

On one point, however, the judge's reasoning does make sense: why did Google wait so long to challenge the Authors Guild's standing. Elements of this case have been going on for many, many years. It does seem a little off to file this particular point so late.

I doubt many people are that surprised by the ruling, but it does mean that Google will have to continue the Google book scanning fight against the Authors Guild. In the long run, I still think any result only ends up harming the Authors Guild. They are showing themselves to be anti-innovation luddites who disregard the interests of the majority of their members, while grandstanding against any new technology that upends the old publisher-gatekeeper model. That may be useful for some big name authors they represent -- since it's all about keeping out competition from new authors, but it's no path to the future.

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Filed Under: authors guild, class action, google books
Companies: google

27 Comments

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Vadim Lebedev, 1 Jun 2012 @ 5:56am

Why don't authors sue Authors Guild
Maybe the authors should launch class action AGAINST Authors Guild
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Cowardly Anonymous, 1 Jun 2012 @ 5:57am

Fortunate
Actually, given the Supreme Court ruling in the Citizens United case, denying the Author's Guild the ability to stand in for their members would almost certainly be overturned on appeal. However, this judge has found a clever way to enable authors to kill the law-suit.

Sure, an opt-out policy might be harder to defeat than an opt-in, but in the face of the state of the law Today, this actually looks more like the judge is doing everything he feels he can to help Google out.
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Jeffry Houser (profile), 1 Jun 2012 @ 6:05am

Re: Fortunate
I'd like to think that the Judge is going out of his way to uphold the law/approaches that he believes is legally correct; as opposed to helping a single defendant/plaintiff.
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Anonymous Coward, 1 Jun 2012 @ 6:16am

They are showing themselves to be anti-innovation luddites who disregard the interests of the majority of their members

Exactly what evidence do you have of this? There are 8000+ members and absolutely no indication that a majority oppose the Google litigation.
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Vic, 1 Jun 2012 @ 6:27am

It's probably going to be an another "Belgian Newspaper's" type suit in the the end... Sue, win, then "allow" Google to continue!
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Richard (profile), 1 Jun 2012 @ 6:42am

Re:
absolutely no indication that a majority oppose the Google litigation.
He didn't say the majority oppose the Google litigation (which would require knowledge of their opinions).

He did say that the Google litigation was against the interest of the majority. This is a judgement that can be made on economic/business grounds from the outside without knowledge of the authors' opinions.

It is quite possible that the authors' opinions are in opposition to their own interests.

What we like is often not good for us!
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Anonymous Coward, 1 Jun 2012 @ 6:47am

American business is madness for one reason: they think a successful business is done by suing and isolating competition. when in fact, business is all about being ahead of your competition and creating product. Bunch of idiots don't even know what business means!
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RonKaminsky (profile), 1 Jun 2012 @ 6:48am

Can't lose, in the end
As far as I can see, we cannot lose (or at least, lose everything), no matter what the outcome.

If the scanning and snippet view is ruled as fair use, we get a good precedent. If the Authors Guild manages to shut down Google Books, then many, many more people will be exposed to another "infomercial" about how screwed up copyright law is nowadays. My guess is that it will give the Pirate Party oodles of new followers in Europe, for sure.
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Atkray (profile), 1 Jun 2012 @ 7:23am

Re: Re: Fortunate
I'd like to think that too.

Unfortunately, personal experiences and observations make that very difficult.
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Anonymous Coward, 1 Jun 2012 @ 7:26am

Re: Re:
Fair enough. However, the members appear to feel that it is in their best interest as their representatives brought the initial case and continue to press it.
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Anonymous Coward, 1 Jun 2012 @ 8:19am

Re: Re: Re:
Though by way of follow-up, Masnick's headline screams:

Court Says Authors Guild Has Standing To Sue Over Google Books, Despite It Not Representing Authors' Views

That is pretty much a statement suggesting that the majority of members of the Author's Guild oppose the position of the guild and the ensuing litigation. That, of course, is pure bullshit.
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Anonymous Coward, 1 Jun 2012 @ 8:43am

exactly, 100% bullshit, Mike makes the headline scream what he wants, to further HIS own opinion and view of it

that is exactly how groups work, not every member of a union, has to vote for a strike, for them to go on strike, or the union itself can order the strike if it feels it is needed, same thing, strawman much??

they need to BIG association gone, so they can destroy the little guy
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E. Zachary Knight (profile), 1 Jun 2012 @ 8:51am

Re: Fortunate
I don't see what the Citizens United case has to do with this. The Citizens United case stated that people pooling resources to create political speech cannot be censored because it violates their First Amendment right to speak freely.
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Anonymous Coward, 1 Jun 2012 @ 9:33am

Re:
they need to BIG association gone, so they can destroy the little guy

Nice gibberish. Having trouble with Google Translator or just an imbecile?
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Anonymous Coward, 1 Jun 2012 @ 9:59am

Silly question

When its claimed that the authors guilds opinion on this matter may not actually represent the opinions of their authors, would'nt it be prudent for the judge to confirm something like this, assuming a judge has the right and the resources.
Could he not simply ask for the contact details of all the authors officially represent, and have impartial officials pay them a quick call/visit, note down their response then poll them up to get a definitive answer

Do the authors agree in suing others for anauthorised access to their works?

I think more judges should be taking a more pro active approach to all their cases when possible, like the judge who learned Java in order to understand a case involving patents on java code. Now that guy has the right idea, shame we dont see that more often
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Anonymous Coward, 1 Jun 2012 @ 10:22am

Re:
When its claimed that the authors guilds opinion on this matter may not actually represent the opinions of their authors, would'nt it be prudent for the judge to confirm something like this, assuming a judge has the right and the resources.

Thus far, it seems that only Masnick is making such a claim.
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Anonymous Coward, 1 Jun 2012 @ 12:03pm

What about non-members?
"It argues that associations have long been allowed to sue on behalf of their members, and the fair use analysis questions aren't really a big deal."

What about authors who aren't members of the Author's Guild? Why should they get to represent me in a class action lawsuit?
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Anonymous Coward, 1 Jun 2012 @ 12:17pm

Re: Why don't authors sue Authors Guild
why don't WE sue the authors guild on behalf of readers? of course it a specious lawsuite, but most class actions are, and i sure as hell count myself as an impacted interested party.
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Cowardly Anonymous, 1 Jun 2012 @ 12:46pm

Re: Re: Fortunate
Citizens United held that a corporation represents stock-holders pooling resources to create political speech, without requiring that those same stockholders all come forward (rather, it falls to the corporate procedures to make the decision).

It is about aggregate groups having the power to speak on behalf of those they nominally represent.
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Anonymous Coward, 1 Jun 2012 @ 2:07pm

Re: What about non-members?
Anyone can opt out of a class action suit. In the unlikely event you are an actual author, feel free to do so.
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Anonymous Coward, 1 Jun 2012 @ 2:10pm

Re:
http://www.techdirt.com/articles/20120503/18180318772/google-points-out-that-what-authors-guild-want s-what-authors-want-are-two-very-different-things.shtml

At least read the links before making such a comment. Shows your lack of follow-up.
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Anonymous Coward, 1 Jun 2012 @ 2:13pm

Re:
http://www.techdirt.com/articles/20120503/18180318772/google-points-out-that-what-authors-guild-want s-what-authors-want-are-two-very-different-things.shtml

Reading the links in the article (hard, I know) we see that only 14% of polled authors object to Google Books. What was that you were assuming?
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Anonymous Coward, 1 Jun 2012 @ 2:14pm

Re: Re:
Still not reading those links, huh? Making assumptions of your own.
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Anonymous Coward, 1 Jun 2012 @ 2:46pm

Re: Re: Re:
I tend to discount self-serving studies commissioned by the defendant. The judge didn't seem to buy it either. And what would have happened if the survey had been conducted by the Author's Guild of their members? I'm sure they could give you some dramatic results as well. The bottom line is that the judge isn't buying the Google-funded, Google-orchestrated "study" that just so happens to support their position as a defendant. No surprise there, except to perhaps you and Masnick.
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Anonymous Coward, 1 Jun 2012 @ 7:49pm

Re:
Hurricane head, for someone who claims to dislike labels and large organisations making decisions for those they claim to represent, you spend a BLOODY AWFUL LOT of time trying to defend their practices.
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Mike Masnick (profile), 2 Jun 2012 @ 12:34am

Re:
Exactly what evidence do you have of this? There are 8000+ members and absolutely no indication that a majority oppose the Google litigation.

The study presented in the case showed the majority of authors like Google scanning their books.
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Mike Masnick (profile), 2 Jun 2012 @ 12:36am

Re: Re: Re: Re:
That is pretty much a statement suggesting that the majority of members of the Author's Guild oppose the position of the guild and the ensuing litigation. That, of course, is pure bullshit.

Again, the data shows that it's not bullshit:

The majority of respondents, 58%, said they approved of Google scanning their books, while 28% were neutral and 14% objected. Almost three out of four respondents, 74%, said they don't believe that Google's scans would affect them financially, while 19% say they have or would benefit and 8% said they have or would be harmed.

Care to take back your claim that it was "pure bullshit"?
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