Class action certification: the key to protecting authors' interests?

Whether Google Library’s book-scanning is fair use is at issue in several lawsuits in the United States, the oldest of which is the Authors Guild’s class action. An appeal is pending against its class-action certification. According to Ilaria Maggioni, recent developments in those other cases might influence that outcome, as she explains in her recent article “Happily ever after?”, published in Intellectual Property Magazine, December 2012/January 2013.

According to Ilaria, reversal of class action certification on appeal is crucial to preserving bargaining power for authors. Maintaining the Google Books suit as a class action is likely to foster continuing inadequacy and unfairness of settlement proposals that may ensue. The October 2012 HathiTrust decision by a district court [noted on this blog by Iona Harding here] recognised fair use of Google’s digitisation on behalf of large university libraries. This created a new obstacle for copyright owners and their representatives since the HathiTrust purports to scan books for benefit of the visually-impaired, but HathiTrust does not correspondingly limit access to its digital library. The district court’s regard for that benefit may have led it to blur the applicable standards for fair use, says Ilaria.