In a brief filed late Friday in New York, Google argued that a class action trial would deny it an opportunity to argue on a book-by-book basis that its scanning was a so-called “transformative” use that falls outside of copyright. This “fair use” argument received a boost in October when a judge dismissed a similar case that the Authors Guild brought against a group of university libraries over a digital collection known as the Hathi Trust.

The new filing by Google is just the latest twist in a case that began in 2005 when publishers and the Authors Guild sued the search giant over its ambitious plan to scan the world’s libraries. The parties eventually reached a settlement that would have created a market for millions of forgotten, out-of-print books but US Judge Denny Chin blew up the deal in 2011 after critics warned it would create a monopoly. The publishers recently dropped their lawsuit against Google but the Authors Guild is pressing on with demands for $750 per book. While the search giant has scanned more than 20 million books, only a relative handful would qualify for compensation under the lawsuit due to legal technicalities.

Overall, the Authors Guild case turns on whether Google’s scanning was “fair use.” Ordinarily, copying an entire work is not fair use but Google argues that its scanning qualifies because the digital copies don’t compete with the existing books but add “something new” — “a greatly improved way of finding them.” The company also argues that the scanned books, which can be seen only in small snippets, do not hurt the market for the original book.

While this is the argument in the bigger picture, Google’s appeal on Friday targets a more narrow question: should the authors be permitted to sue together. Google says they should not because most authors actually approve of the scanning, and that these authors shouldn’t be dragged into a legal action with those who don’t:

Plaintiffs’ objective is to dismantle a project that benefits many, and perhaps most, other class members … [A class certification] would deprive many authors of the benefits they obtain from Google Books—a result those authors could not avoid by opting out of the class. And those authors are numerous: A random survey of published authors by Google’s expert showed that 58% approved of Google scanning their copyrighted books so that the books could be searched online and snippets could be displayed; 45% had seen or expected to see demand for their books increase (versus 4% who expected demand to decline); and 19% said they financially benefit from the project (compared to only 8% who said they do not).

Chin rejected this argument in May and took the big step of “certifying the class” which is a green light for a class action to go to trial. The US Second Circuit Court of Appeals granted Google permission to appeal the certification in August, however, which effectively put the proceedings on ice. The case also slowed after Joanne Zack, a class action expert representing the Authors Guild, passed away suddenly this fall.

It’s impossible to know exactly what’s going on behind the scenes but it’s a good bet that the Authors Guild is pushing for a settlement that will give it at least a symbolic victory and let it recoup its legal fees. Copyright scholars, meanwhile, have been hoping for a grand decision in the case that will provide a working definition of fair use in the digital age.

You can read Google’s filing for yourself here:

Google Appeal Brief on Cert

In a statement released this morning, Google and the Association of American Publishers said they have formally resolved a copyright lawsuit that began in 2005. The deal will allow publishers to use books scanned by Google as they see fit — making them available for sale or withholding them.

Google’s top lawyer, David Drummond, said in the statement that the settlement means more ebooks will become available through Google’s online bookstore, Books on Google Play.

Details of the settlement are confidential, but a Google executive revealed in a phone interview with paidContent that the company “has very robust plans to increase analytics” with publishers. This is significant because publishers have long been frustrated by Amazon’s unwillingness to share data like customer profiles and buying habits.

The deal amounts to formal recognition of a process that was occurring already, in which Google and individual publishers were reaching deals. The Google partnership is helpful to the publishers because, in many cases, it will give them access to digital versions of their backlist.

The deal between Google and the publishers is likely, however, to anger the publishers’ one-time partner, the Authors Guild. Unlike the publishers, the Guild decided last December to review its original 2005 class action claim after Judge Denny Chin blew up a controversial three-way settlement deal in the spring of 2011.

Today’s development is also likely to further complicate disputes between authors and publishers over who owns the digital rights to books published in the pre-digital era.

The Google-publisher deal does not  resolve the question of whether Google’s book scanning amounted to copyright infringement. The company is adamant that the scanning qualifies under the “fair use” exemption, while the Authors Guild is demanding it pay $750 per book. Scholars and activists like the Electronic Frontier Foundation have filed briefs to support Google’s fair use argument. The case is now on hold as an appeals court decides whether it should have gone forward in the first place.

According to Google, its massive book scanning project is fair use because the scanning has delivered many public benefits without harming authors. The company claims that its creation of full-text book searching is “the most significant advance in library search technology in the last five decades” and that the Authors Guild has shown “no evidence that Google Books has displaced the sale of even a single book.”

The new filing (embedded below) is in response to Judge Denny Chin’s deadline for Google and the Authors Guild to submit arguments on why the case can be decided without a trial. This is just the latest phase of a legal dispute that began in 2005 after authors and publishers sued Google over its ambitious plan to create a massive digital library. The lawsuit was on ice for several years as the parties worked out a settlement that would have created an online market for the books. Judge Chin blew up the settlement in March 2011, however, after concluding that it was a “bridge too far.”

Chin now has to decide whether Google must pay for scanning each book without permission or whether the scanning amounted to “fair use.” The test for fair use involves looking at four factors, including whether the copying was “transformative” as well as the reproduction’s effect on the market for the original work.

In its filing, Google cites a number of pop culture examples to argue that a searchable digital library is a benefit to the public. For instance, Google cites an Atlantic article (“The Foreign Language of Mad Men”) that relied on a Google Book search to show that characters in the hit show Mad Men were using dialogue from a later era. The company also describes how book searches unearthed references to an unheralded baseball player, Steve Hovley, that would otherwise have remained buried. And Google cites the more serious example of Minoru Yasui, a civil rights lawyer who is all but invisible in the Library of Congress catalog but surfaces repeatedly in Google Books.

Google also cites evidence suggesting that online book discovery helps authors sell more copies. It quotes a memo from literary agency William Morris that says “inclusion in Google Books is a fair use and not detrimental to the copyright owner in any way” and points to the Authors Guild’s own suggestion that writers make a chapter of their book freely available on the internet.