Google may appeal a New York federal district court’s decision to grant class-action status to a copyright-infringement lawsuit challenging the Google Books service, the U.S. Court of Appeals for the Second Circuit ruled Tuesday.  The Authors Guild, Inc. v. Google, Inc., No. 12-2402 (2d Cir. Aug. 14, 2012).

Google launched its Google Books Library Project in 2004, when it reached agreements with several major research libraries allowing Google to digitally scan the libraries’ collections, which Google then displayed in an online, searchable database. Many works in the Google Books database remain under copyright and were scanned and displayed without permission from copyright holders.

In 2005, the Authors Guild and several individual authors filed a proposed class-action lawsuit, alleging that the Google Books service infringes authors’ copyrights. Google has asserted its service is a protected “fair use.” Twice before, Google and the plaintiffs reached a proposed class settlement agreement that would have allowed Google to maintain and expand its database of books while sharing revenues with rights-holders.  However, the district court ultimately rejected the proposed settlement after receiving hundreds of objections, including concerns raised by the U.S. Department of Justice’s Antitrust Division.

On May 31, the district court granted class-action status to the Authors Guild plaintiffs, consisting of “[a]ll persons residing in the United States who hold a copyright interest in one or more Books reproduced by Google as part of its Library Project.”  Google seeks to challenge the certification on the basis (i) that the proposed class representatives cannot adequately represent absent class members who benefit from the Google Books project (an “intra-class conflict”) and (ii) that Google’s principal “fair use” defense is unique to each individual work, defeating the Rule 23(b)(3) requirement that common issues predominate.

Tuesday’s decision allows Google to immediately appeal the class certification before proceeding to a full trial on the merits.  The Second Circuit has established a new docket number for the appeal — No. 12-3200.