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Good fair use news from the 2d Circuit in #GBS

Last Updated on July 1, 2013, 4:15 pm ET

This morning a panel of judges from the Federal Court of Appeals for the Second Circuit issued a short but significant opinion in the hotly-contested Google Books litigation. In less than 5 pages, the court reverses district court judge Denny Chin’s decision to certify the Authors Guild’s class action lawsuit against Google. The appeals court ordered Judge Chin to first consider Google’s fair use defense, as the success of that defense would render the question of whether the suit should go forward as a class action moot. The court also said that sorting out the issues involved in a fair use determination would also help sort out whether a class action proceeding is appropriate. The appellate court also expressed sympathy for Google’s argument that the Guild is not representative of most authors, citing Google’s evidence that many, perhaps most, authors benefit from Google Book Search and would not want the Guild to prevail in its suit. The court did not decide that issue, though, and it may resurface later.

Professor James Grimmelmann, an avid commentator on the lawsuit, has suggested that the decision implies the court thinks the fair use outcome will likely favor Google. I’m not sure I would go that far. It may just be that the court thinks proceeding as a class action raises the stakes so substantially that it makes sense to explore any alternative that could potentially end the suit before that dramatic escalation takes place.

Regardless of whether this decision telegraphs good vibes about the fair use outcome, it’s a great precedent for future fair uses. It means that fair use cases will be tried more quickly and the stakes of the litigation will not be raised to the extraordinary level of a class action without first reaching the question of fair use. This is, I think, another nail in the coffin of the myth that fair use is just the right to hire a lawyer. Together with the attorneys’ fees awards in GSU and other fair use cases, the early decisions in cases like the South Park “What What” parody, and even the Prince “Let’s Go Crazy” case that says rightsholders have to consider fair use before issuing DMCA takedowns, this decision is creating a series of procedural protections that make fair use a real user’s right.

UPDATE: The full text of the opinion is here.