Cite as 804 F.3d 87 (2nd Cir. 2015)
GRIN facility, participant libraries have downloaded at least 2.7 million digital copies of their own volumes.
- III. Procedural History
Plaintiffs brought this suit on September 20, 2005, as a putative class action on behalf of similarly situated, rights-owning authors.[1] After several years of negotiation, the parties reached a proposed settlement that would have resolved the claims on a class-wide basis. The proposed settlement allowed Google to make substantially more extensive use of its scans of copyrighted books than contemplated under the present judgment, and provided that Google would make payments to the rights holders in return. On March 22, 2011, however, the district court rejected the proposed settlement as unfair to the class members who relied on the named plaintiffs to represent their interests. Authors Guild v. Google Inc., 770 F.Supp.2d 666, 679–680 (S.D.N.Y.2011).
On October 14, 2011, Plaintiffs filed a fourth amended class action complaint, which is the operative complaint for this appeal. See Dist. Ct. Docket No. 985. The district court certified a class on May 31, 2012. Authors Guild v. Google Inc., 282 F.R.D. 384 (S.D.N.Y.2012). Google appealed from the certification, and moved in the district court for summary judgment on its fair use defense. Plaintiffs cross-moved in the district court for summary judgment. On the appeal from the class certification, our court—questioning whether it was reasonable to infer that the putative class of authors favored the relief sought by the named plaintiffs—provisionally vacated that class certification without addressing the merits of the issue, concluding instead that “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues.” Authors Guild, Inc. v. Google Inc., 721 F.3d 132, 134 (2d Cir.2013).
On November 14, 2013, the district court granted Google’s motion for summary judgment, concluding that the uses made by Google of copyrighted books were fair uses, protected by § 107. Authors Guild, 954 F.Supp.2d at 284. Upon consideration of the four statutory factors of § 107, the district court found that Google’s uses were transformative, that its display of copyrighted material was properly limited, and that the Google Books program did not impermissibly serve as a market substitute for the original works. Id. at 290. The court entered judgment initially on November 27, 2013, followed by an amended judgment on December 10, 2013, dis-
- ↑ A year earlier, authors brought suit against the HathiTrust Digital Library, alleging facts that are closely related, although not identical, to those alleged in the instant case. Authors Guild, Inc. v. HathiTrust, 735 F.3d 87, 91 (2d Cir.2014).
downloaded from the services offered on U of M’s website or otherwise disseminated to the public at large.
JA 233.
Google’s agreement with Stanford appears to be less restrictive on Stanford than its agreements with other libraries. It ostensibly permits Stanford’s libraries to “provide access to or copies from the Stanford Digital Copy” to a wide range of users, including individuals authorized to access the Stanford University Network, individuals affiliated with “partner research libraries,” and “education, research, government institutions and libraries not affiliated with Stanford,” CA 133, and to permit authorized individuals to download or print up to ten percent of Stanford Digital Copy. On the other hand, the agreement requires Stanford to employ its digital copies in conformity with the copyright law. Without evidence to the contrary, which Plaintiffs have not provided, it seems reasonable to construe these potentially conflicting provisions as meaning that Stanford may do the enumerated things ostensibly permitted only to the extent that doing so would be in conformity with the copyright law.
