The Google Books case showed signs of life this week. This case has been working its way through the federal court system for eight years and still shows no signs of leaving the district level. Now the case’s status as a class action suit took a hit in the Court of Appeals.
From the ruling it appears that part of the court’s thinking is based on two facts. The first is that Google intents to mount a Fair Use defense in court. Second is that since Fair Use defenses hinge on the Purpose and Nature of a work no court can fairly rule on works and authors as a class in a Fair Use case. To put it another way the fair use determination for a novel, a scholarly monograph, and a technical manual could be different due to the purpose (entertainment, scholarship, informational) and nature (fictional, analysis of facts, factual) even if all three works were produced by the same author.
How this redefinition of the parties involved in the case will affect the potential outcome is still unknown. The ruling does suggest that the Appeals Court in this case is taking Fair Use seriously. Hopefully this ruling will not signal that a Fair Use determination will have to be made for each of the 20 million books scanned by Google.