Second Circuit Calls for Fair Use Consideration in the Latest Episode of the Google Books Saga

Today, the Second Circuit Court of Appeals vacated the district court’s class certification of June 2012 and remanded for a consideration of fair use.  The Court held “that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact.”  This suggests, as Professor James Grimmelmann noted and Professor Jason Schultz agreed, that the Second Circuit may be likely to find Google’s actions to constitute fair use.

Matt discussed the issue of class certification in copyright cases in May after the Football Association Premier League class was denied, explaining why intellectual property — as opposed to real property — tends to be a poor fit for class action suits.

It’s also worth pointing out that the Second Circuit panel who came out with this opinion today included Judge Pierre Leval, whose 1990 article “Toward a Fair Use Standard” brought fair use jurisprudence the “transformativeness” standard, which has become a key, often outcome-determinative, part of the fair use analysis.

The fair use defense has been crucial for innovation and new technologies, and today’s ruling continues to reinforce that.