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Google and Walmart – Wait, what?

Last Updated on July 29, 2011, 7:39 pm ET

In a new filing this week, one of the objectors to the Google Books settlement raised the spectre of the recent Supreme Court decision barring an epic class action sex discrimination lawsuit against Walmart. Publishers Weekly and James Grimmelmann’s Public Index blog have the scoop.

In a nutshell, the Walmart decision is a bar on overly-broad class actions. At some point the factual circumstances of a group of plaintiffs are so disparate that they can’t form a proper “class.” The objector argues that because fair use is a fact-specific inquiry, there can’t be a proper class action that involves fair use determinations regarding hundreds of thousands (millions, really) of works. Grimmelmann told PW that this theory would have a very strange outcome, as there could be no class actions in copyright cases (which are typically subject to a fair use defense). This can’t be the right result. As I pointed out in my article on copyright myths, fair use can be and has been a factor in legitimizing broad swaths of behavior in important cases, including Supreme Court cases such as Sony Betamax.