A judge's decision to certify a class of authors in the lawsuit over Google's effort to build a massive online library has been vacated by the U.S. Court of Appeals for the Second Circuit.

The circuit said Monday that Judge Denny Chin's decision to certify the class was premature because he had not determined the merits of Google's fair-use defense under the Copyright Act to copying and displaying "snippets" of millions of books for the Library Project of its "Google Books" search tool.

Chin (See Profile), a Second Circuit judge, continues to preside over some cases from his time on the Southern District bench.

The case now returns to Chin for litigation of the fair-use defense under §117 of the Copyright Act through summary judgment motions by Google; name plaintiff authors Betty Miles, Joseph Goulden and Jim Bouton; and the Authors Guild Inc., an associational plaintiff representing thousands of authors, but, unlike the name plaintiffs, is only seeking injunctive relief.

Circuit Judges Pierre Leval (See Profile), Jose Cabranes (See Profile) and Barrington Parker Jr. (See Profile) made the decision to remand Monday following oral arguments on May 8 by Seth Waxman of Wilmer Cutler Pickering Hale and Dorr for Google and Robert LaRocca of Kohn Swift & Graf in Philadelphia. The case is Authors Guild v. Google 12-3200-cv.

The judges' unsigned decision sets up oral arguments before Chin in a lawsuit that began in 2005, when authors charged that the scanning and indexing of more than 20 million works amounted to wholesale copyright infringement.

A settlement in two cases before Chin, one brought by authors and a second brought by publishers, was reached in 2009, but Chin was forced to postpone a fairness hearing after the U.S. Department of Justice said the agreement probably violated antitrust laws because it would reduce competition and drive up book prices (NYLJ, Sept. 22, 2009).

Google and the authors and publishers reached an amended proposed class settlement agreement for $125 million that Chin rejected in 2011.

Chin said that while many elements of the settlement had merit, as a whole the deal would give Google "significant rights to exploit entire books, without the permission of the copyright holders," and "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying ofcopyrighted works without permission, while releasing claims well beyond those presented in the case" (NYLJ, March 23, 2011).

The publishers have since settled.

Google went on to oppose class certification on the grounds that the plaintiffs were unable to "fairly and adequately protect the interests of the class" under Federal Rule of Civil Procedure 23(a)(4) because many members of the class would benefit from the snippets—out-of-print books could be brought back to life and forgotten authors could have their careers or posthumous reputations revived, it argued.

But Chin certified the class by order on June 11, 2012, and the circuit gave Google permission to make an interlocutory appeal under Rule 23(f) in August 2012.

On Monday, the circuit said it wanted to review the whole picture on full appeal from Chin's decision on summary judgment.

"Putting aside the merits of Google's claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force— we believe that the resolution of Google's fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues," the panel said, "…[I]including those regarding the commonality of plaintiffs' injuries, the typicality of their claims, and the predominance of common questions of law or fact."

The court also said that holding off on the appeal for now would not prejudice either party.

"We are delighted by the court's decision," Google said in a statement. "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."

Google's trial counsel are Daralyn Durie and Joseph Gratz of Durie Tangri in San Francisco. The Authors Guild is represented by Michael Boni, Joshua Snyder and John Sindoni of Boni & Zack in Bala Cynwyd, Pa., and Sanford Dumain of Milberg.

Boni said the curcuit panel was deliberating whether to vacate the certification or just suspend its consideration until Chin heard argument and issued a decision on summary judgment, although he preferred the latter option.

"It's all the same thing — there's no prejudice for us to move for class certification again before Judge Chin," Boni said. "Now we move on and deal with the we deal with the fair use question before Judge Chin and, ironically, we do so en masse.

"That's the beautiful irony of this opinion—at the same time they aren't dealing with the class issue, they really are because what they're really saying is the fair use questions can be determined on a class-wide basis."