â€œThe question of ownership is very murky because of the contractual relationships between the parties and because it is conceded that in many cases authors receive no royalties from the publisher for these displays,â€ she said.
Joanne Zack, a lawyer for The Authors Guild, countered that the judge should certify the authors as a class because millions of them would not have the money to go to court and because the potential financial reward for doing so would not be high enough to make it practical. She said they also might be intimidated fighting a company as large as Google.
â€œThis action does cry out for mass litigation to adjudicate the mass digitization,â€ she said. â€œThis is a classic case for a class action because weâ€™re talking about blanket policies that affected millions of people and weâ€™re talking primarily about legal issues â€” infringement, fair use â€” that can be determined based on common questions of law and fact.â€
She called it â€œa terrible burden on the courts if each individual author chose to litigate, and, of course, Google hopes that nobody will.â€
The judge agreed that Google is â€œhoping that individual authors wonâ€™t come forward.â€
Chin did not immediately rule on what the law demands, but he questioned whether Google really wanted to face multiple lawsuits from authors and photographers.
â€œIt would take forever. It just seems to make sense to address that on a group basis whether through an association or whether through a class action,â€ the judge said.
The arguments came a year after Chin rejected a $125 million deal that would have settled the case. He tossed out the settlement between Google and representatives of The Authors Guild and publishers after studying objections from Google rivals, consumer watchdogs, academic experts, literary agents, the Department of Justice and even foreign governments.
A challenge to The Authors Guild and the American Society of Media Photographers Inc. as litigants seemed unusual so many years after lawsuits were first filed, Chin said. The Authors Guild sued in 2005. The photographersâ€™ lawsuit was filed two years ago.
â€œNow all of a sudden Google is saying, â€˜You donâ€™t have standing,â€™â€ the judge said.
Durie responded that negotiations had consumed most of the time since lawsuits were first filed, and that it was not unusual to put off pretrial challenges while talks were going on.
Although negotiations appeared to have broken down with the authors, they were still proceeding with publishers and the photographers. Attorney James McGuire said outside court on behalf of the photographers: â€œWe talk, but I wouldnâ€™t characterize them as serious.â€
In court, McGuire said it was â€œsomewhat unfair, inconsistent and respectfully hypocritical for Google after willy-nilly scanning 20 million books and 20 million covers in our view without regard to individual rights to come back and say … the burden is on us.â€
In court papers, Google said the groups representing authors and photographers â€œare not owners of the copyrights asserted in this case, and the associations do not possess the facts about copyright ownership, individual economic impact, or the other individualized questions required of a plaintiff in a copyright litigation matter where ownership and fair use are at issue.â€
Google already has scanned more than 20 million books for the project. Under the original agreement, Google had planned to put about 130 million titles into its digital library.
In rejecting the settlement last year, Chin noted that many objections would vanish if the library only consisted of works in which authors and publishers had granted their permission rather than a system in which books were included unless Google was informed that an author or publisher objected.
The judge has supported the overall goal, saying a digital universe for books would let libraries, schools, researchers and disadvantaged populations gain access to far more books, would help authors and publishers find new audiences and new sources of income and would allow older books â€” particularly those out of print â€” to be preserved and given new life.
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