By Bernard Vaughan
NEW YORK (Reuters) - A U.S. federal appeals court on Wednesday questioned the reasoning behind a class-action lawsuit against Google Inc over its effort to digitize millions of books, suggesting that many authors could benefit from the project.
Billions of dollars are at stake in the long-running dispute, in which The Authors Guild as well as groups representing photographers and graphic artists argue that the Google Books project amounts to massive copyright infringement.
Google is appealing a lower court's ruling allowing the plaintiffs to pursue a class-action lawsuit rather than file claims individually.
If the 2nd U.S. Circuit Court of Appeals bars the plaintiffs from suing collectively, it likely would be much harder for them to win a large damages award against Google.
Circuit Judge Pierre Leval, one of three judges hearing Google's appeal, said the company's project could benefit many authors. It could particularly help writers whose works are more obscure, by telling readers where they could buy their books, he said.
"A lot of authors would say, 'Hey, that's great for me,'" Leval said.
Robert LaRocca, a lawyer for the plaintiffs, argued that a survey of class members that Google conducted was flawed. That survey, plaintiffs said in court papers, showed that 500 authors, or 58 percent of those surveyed, approved of Google's project.
"We think the vast majority of the class support us," he said.
WHAT'S FAIR USE?
The case derives from the Mountain View, California-based company's 2004 agreement with several research libraries to digitize books with a goal of helping researchers and the general public find material.
Google has since scanned more than 20 million books and posted snippets of more than 4 million online.
The project could have "enormous value for our culture," said Circuit Judge Barrington Parker.
"This is something that has never happened in the history of mankind," he said.
Google argues the practice constituted "fair use," an exception under U.S. copyright law because it only provided portions of the works online. Plaintiffs disagree, saying the verbatim display of the copied work does not substantially differ from its original form.
Seth Waxman, a lawyer for Google, told the appeals court that based on the plaintiffs' argument that the company should pay $750 for each book it copied, that would amount to more than $3 billion in damages.
Leval and the third judge on the panel, Circuit Judge Jose Cabranes, suggested the case may have gotten ahead of itself.
Instead of reversing the lower court's ruling allowing the case to go forward as a class action, the two judges asked lawyers for both sides why they shouldn't send the case back to the district court to rule on Google's "fair use" defense first, then decide later on the class's validity.
"I wonder if you're out of sequence," Leval said to Waxman.
The Google lawyer countered that the class encompasses vastly different types of work, from poetry to mathematical books. Arguing its "fair use" defense against such variety would be like arguing "with one hand tied behind our back."
The judges reserved judgment on the matter.
"The investment we have made in Google Books benefits readers and writers alike, helping unlock the great pool of knowledge contained in millions of books," Maggie Shiels, a spokeswoman for Google, said in a statement.
The case is Google Inc v. Authors Guild Inc et al, 2nd U.S. Circuit Court of Appeals, No. 12-3200.
(Reporting By Bernard Vaughan. Additional reporting by Jonathan Stempel; Editing by Martha Graybow and Xavier Briand)