Hey, remember the big e-book trial? No, not that one, the other one.

The latest news to come out of the courts about the big Authors Guild vs Google case is that the Second Court of Appeals has sided with Google in putting a hold on Judge Chin’s decision that the Authors Guild could have class-action status to represent all authors who had been wronged by Google.

Perhaps the more interesting part of the decision, however, was why they did it. The Second Court said that they felt the question of class action status was premature at this point, because Google Books could actually be fair use. They ordered Judge Chin (who is actually a member of said court now, but is still handling the Google case as a holdover from his District judge days) to rule on whether or not Google’s scanning constitutes fair use before deciding whether to grant class action, because if it is, then class action is a moot point. (Google filed a motion for summary judgment requesting such a ruling just short of a year ago.) And you know that court will be watching—one of its members, Judge Pierre Leval, published a ground-breaking journal article on fair use in 1990.

That does tend to cut right to the heart of the matter, doesn’t it? If the scanning is ruled to be fair use—that is, it passes the four-factor test deciding whether it is transformative and benign enough to be a permitted violation of copyright law—that effectively cuts the Author’s Guild’s legs right out from under it. And probably doesn’t help it much with the related HathiTrust case, either. And Mike Masnick over at Techdirt thinks that the instruction was a bit more pointed than that—that the appeals court is doing everything short of jumping up and down and yelling, “That is fair use, you idiot!”

Of course, no matter what happens it’ll still get appealed right up the ladder, and may well end up with the Supreme Court just as the Apple trial does. Still, it’s nice to see some movement in this case that’s been going on since before I even started writing for TeleRead.


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