Yesterday, the Second Circuit overturned class certification in a copyright case that is being closely followed by the publishing industry.  The Southern District of New York had granted class certification to a group of authors who allege that Google Books – the company's project to digitize and make searchable millions of books – violates their copyrights.  In a per curiam opinion, the Second Circuit reversed, ruling that class certification was premature and that the District Court should have ruled on the merits of Google's fair use defense prior to class certification.

Since 2004, Google has been scanning books with the goal of digitizing and making searchable nearly every book ever written.  The company maintains that people who search for in-copyright books can only see "snippets" of those books and that showing such snippets constitutes fair use.  In June 2012, the District Court certified a proposed class of authors with a copyright interest in one or more books reproduced by Google.  Google appealed the certification order, claiming the fair use defense and that the plaintiffs do not fairly and adequately protect the interests of the class, as many class members benefit from the project and oppose the litigation.

In its opinion decertifying the class, the Second Circuit acknowledged the potential merit of Google's argument that the plaintiffs are not representative of the certified class.  More significantly, the court determined that resolution of the fair use defense should come first, as it may resolve the class certification issues.  Additionally, the Court found that postponing the decision on the class certification issue until the fair use defense is resolved will not prejudice either party.

This week's ruling – and the ultimate outcome of this case – could have a significant impact on the application of the fair use doctrine and compilation works under copyright law.