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Google Books lawsuit goes back to square one as court throws out class action designation

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Like many other Google services, Google Books has been contentious from the start. In 2005, less than a year after launch, the Authors Guild, Association of American Publishers, and a number of other writers filed two copyright suits against it for scanning books and displaying short excerpts ("snippets") online. Authors called it copyright infringement on a "massive" scale, while Google pled fair use, saying it was showing little text and transforming the books into an online database. And while one lawsuit was finally settled last year, another has taken a step backwards.

In a ruling delivered earlier today, the US Court of Appeals for the Second Circuit threw out a lower court's decision to grant the authors class action status. That means they can't move forward with the lawsuit they were approved to bring in mid-2012; instead, the issue will go back to the district court, which will have to decide again whether to certify the authors as a class. The issue at stake is Google's central fair use claim, which the appeals court decided hadn't been given fair consideration in the original move. "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," wrote the judges.

The last certification took months to achieve, and there's no telling when a new decision will be handed down. Of course, the suit has already had many false starts and conclusions — a sweeping settlement promised to end the matter back in 2008, but it was ultimately thrown out. Google's fair use claims have held up in other arenas, but so far, it's tended to reach agreements or settlements with book publishers, and there's no reason to believe it won't do the same this time. That doesn't mean, however, that it won't work to shift the legal balance in its favor by pushing for individual suits rather than a class action one.