Copyright Law and Class Actions: A Google Book Dilemma

Copyright owners have the right to exploit, or not exploit, their works largely as they see fit. That right is one of many reasons — and one of the most interesting — that Google’s proposed settlement with a class of authors and publishers fell through for a second time when Judge Denny Chin rejected a proposed settlement in Authors’ Guild v. Google. Chin’s decision raises an important question: Can a class of copyright holders ever settle a claim under Federal Rule of Civil Procedure 23? Or is Rule 23 fundamentally at odds with a copyright holder’s control over its intellectual property?

Under Rule 23, members of a class presumptively participate in the case. In a damages case, they can opt out. In other cases — typically those involving claims for injunctive relief — their participation in the class is mandatory. In Google’s settlement, mandatory participation, or even mandatory participation after an opt-out period, would have meant that any author or publisher who did not opt out of the case licensed its copyright to Google, at least provisionally. (Under the proposed settlement, class members could exempt their copyrighted works from some types of republication by Google, even after the opt-out period).