A copyright-infringement lawsuit challenging the Google Books service will proceed in a New York federal district court, even while an appeals court considers whether the suit can proceed as a class action.
In an order filed Wednesday, Judge Denny Chin declined Google’s request to stay the district-court proceedings. Judge Chin granted class-action status to the plaintiffs in May, certifying a class 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.
As we reported earlier this month, the U.S. Court of Appeals for the Second Circuit granted Google’s request to immediately appeal the class certification, but that ruling did not automatically put the district-court proceedings on hold. In denying Google’s request for a stay, Judge Chin wrote that a stay could delay the seven-year old case for a year or more, and “there simply is no good reason to delay matters further” given that “[t]he merits would have to be reached at some point in any event.”
Judge Chin sits on the Second Circuit but is serving as a district court judge in the Google Books case. He has recused himself from the Second Circuit proceedings in the case.