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

The outcome of the appeal is likely to determine the fate of the more than 20 million books that Google has scanned but that now sit effectively locked up on the company’s servers. The fate of the books has been in limbo since Judge Denny Chin last year blew up a proposed settlement between Google, publishers and the Authors Guild that would have made the books available for sale.

After the settlement collapsed, Google and the publishers have been hashing out bilateral deals while the Authors Guild revived the initial class action lawsuit it filed in 2005. A separate group representing illustrators and publishers joined the case in 2010.

In its appeal, Google is trying the same double-barreled strategy it attempted before Judge Chin. First, it is arguing that the plaintiffs, including the Authors Guild, are not fit to represent an entire class of writers whose works were scanned. Google points to a study to say that many authors are actually pleased with the scanning endeavor and that they should not be pressed into the same lawsuit as those who are unhappy.

Google’s second argument raises a more profound question about copyright law in the digital age. The search giant is arguing that its actions represented fair use — a legal rule that provides immunity for copyright infringement on the grounds that (loosely stated) the benefit of the use outweighs the harm of the  infringement. Google has made this argument all along and many librarians, academics and publishers are eager for a court to address it directly.

The case will now go to the US Second Circuit of Appeals in New York City where Judge Chin now sits after he was promoted during the course of the initial lawsuit. Since Chin is still sitting by designation on the underlying case, he will not be one of the three or more judges to hear the appeal. This might prove favorable to Google as Chin so far has evinced considerable skepticism about Google’s positions.

Google’s appeal filing also coincides with a shift in the company’s rhetorical strategy. In the past, the company has typically issued only terse legal statements but today, in an email statement, a spokesman said:

“Much of the world’s information appears on the printed page, but almost three quarters of the world’s books are out of print and unavailable except to the lucky few who can find old copies in libraries. With Google Books, our goal is make the knowledge contained in books easy to discover and more useful for people.”

This appeal to fairness and spreading knowledge might gain more traction than it did two years ago when Google’s agenda came under fire by dozens of groups led by Microsoft and Amazon who accused the company of aspiring to a monopoly on books.

The story was first reported at PublishersWeekly. A copy of the order can be found here courtesy of James Grimmelmann.

The Guild is suing its former partner for scanning books without permission while a group representing photographers is also appearing before Chin to press copyright claims of its own.

At today’s hearing the Authors Guild is set to ask Chin to confirm that the country’s writers can sue together. Google is opposing the request while also seeking to throw out the Authors Guild and photographers’ complaints altogether.

According to Google, the Authors Guild doesn’t have standing to sue because it’s an association — the search giant says individual writers who own copyrights should bring the case instead. The Guild says it’s the logical group to represent authors who need its institutional muscle.

Google also says there should be no class action to begin with because of the divergent interests among the writer whose books were scanned. It argues, for instance, that many writers like the scanning program and that they shouldn’t be included in the collective lawsuit.

“The ultimate question is who owns the rights to display a small excerpt of the work,” Daralyn Durie, a lawyer for Google, told the judge today. “Many authors contracted that right away to publishers.”

In the bigger picture, the case is unlikely to go anywhere fast. Google and its ace lawyer Durie have the resources to keep it bottled up in preliminary issues for the foreseeable future. Meanwhile, Judge Chin is now overseeing the case as a special matter in addition to his duties on the Second Circuit Court of Appeals where he now sits. At earlier hearings, Chin has indicated that he would like the parties to settle.

At the same time, the larger world of online books has changed dramatically in the last two years. In early 2010, when the parties gathered before Chin in a ballyhooed hearing, critics claimed Google would dominate the online book market. Today, all eyes are instead on dominant Amazon and Apple. The latter indicated it wants to remake the textbook market and is also tangling with the Justice Department over price-fixing allegations.

The Google Books Settlement was originally a three part deal between Google, the Authors Guild and publishers that would have paid writers a flat fee and also given them advertising and royalty revenues.

After Chin rejected the settlement, the Guild and the publishers revived their original lawsuits from 2005. The publishers, however, have quietly been dropping out of the proceedings to obtain bilateral deals with Google.

Google has by now reportedly scanned 20 million books, most of which remain largely locked up.

While the Google case plods along, scholars like Berkeley’s Pamela Samuelson are calling for Congress to fix copyright law in order to create a Digital Public Library of America.

Judge Chin said he will rule later on today’s motions. He also said Google and the Author’s Guild could move for judgment without a trial and he would hear oral motions in September.

The goal of the project is to preserve and commercialize French books from before 2001 that are no longer for sale in print or online. France’s Bibliothèque nationale is compiling a list of books that will be included in the project and eventually sold online.

According to Swiss newspaper Le Temps, the French government will hold a 40 percent stake in a new royalty collection enterprise while publishers will control the rest. The project, which is receiving an initial subsidy of 30 million euros, guarantees that at least 50 percent of royalties will go to publishers and authors.

Like the Google Book Settlement, the French plan is “opt-out” which means that authors will be included unless they object within six months.

“This is an underwater continent that has just resurfaced,” Culture Minister Frédéric Mitterrand reportedly said when the deal was signed. According to Le Temps, the details of the agreement were a long-held secret until a literary site Actualitte reported them in late February. Both France’s Senate and Assemblée Nationale have approved the plan.

Science fiction writer Ayerdha is leading an opposition of 900 writers who have signed a petition and denounced the scheme as an abuse of their intellectual property rights.

France has long been a laggard in digitizing books and news media, and the plan appears to offer a way to catch up with countries like the United States where digitization is ubiquitous.

France’s ambitious scheme is notable given that the country was a leading opponent to the failed three-way settlement in the US between Google, publishers and the Authors Guild. On Actualitte, supporters claim the French deal is different because the Bibliothèque nationale is supervising it and because the new digital collection will not show “snippets” of scanned work.

The French scheme may also have a snobbish element to it. As Le Temps notes, the Bibliothèque nationale is likely to include at first only traditional literature so fans of bodice rippers and the like may have to wait to see their favorite titles online.

It’s not clear if France will scan all the works from scratch or if it will include works already scanned by Google. I have reached out to Google for comment and will update when I hear back.

The new law is called “La loi sur les livres indisponibles du XXème siècle”

[Update: Thanks to commenter TheSFReader for calling attention to my mistranslation of "indisponsibles." I had earlier written "indispensable" instead of "unavailable." My French is rusty -- I apologize for the error.]

In a motion filed in New York federal court, the Authors Guild asked Judge Denny Chin to certify the class of authors suing Google. This is a common procedural step in any class action suit and amounts to plaintiffs asking the court’s permission to bring a lawsuit on behalf of everyone else in the same position (in this case, every US author whose copyrighted work has been scanned by Google).

This is essentially where the authors were in 2005 when Google first partnered with dozens of libraries to create a digital collection that today numbers at least 14 million titles. The collection is now languishing unread after Judge Chin rejected the Google Book Settlement, an ambitious three-way partnership that would have allowed Google to sell out-of-print books and share the proceeds with publishers and authors.

The difference with the lawsuit this time around is the absence of the publishers who, in 2005, had joined with the authors to stop Google. That is likely because the publishers, after the failure of the settlement, have begun to craft a series of bilateral deals with the search giant.

The original legal issue in the case is whether Google’s book scanning is a fair use that doesn’t violate copyright. The question, which has tantalized scholars and copyright lawyers, is unlikely to be answered anytime soon, however, because the case will be snarled in procedural matters for the foreseeable future.

Google is expected to move to have the case thrown out in coming weeks.

“We are reviewing Plaintiffs’ Motion for Class Certification, and we will be filing our opposition to that motion on January 26, according to the schedule set by the court,” Google spokesman Gabriel Stricker wrote in an email.

For more about today’s filing, see this useful account from Publishers Weekly.

The lawsuit is a response to a digital book sharing plan announced last month by a group of prominent schools, including Michigan, Cornell, Duke and the University of California. The plan is intended to solve the problem of how to share “orphan works” — books whose authors can’t be found and that for that reason cannot be distributed because of copyright law. Millions of such works, covering everything from cooking to chemistry, now sit largely forgotten on library shelves.

The universities want to make digital copies of the orphan works available to their students and scholars beginning in October. Librarians say they will make a careful search for the author before they make a book available and that they will “turn off” the digital copy immediately if an author comes forward. They believe that these steps will make the sharing “fair use,” meaning they would not be liable under copyright laws that call for fines of thousands of dollars every time a work is copied.

Authors’ groups are having none of it. Author’s Guild president Scott Turow called the scheme a “preposterous ad-hoc initiative,” and the lawsuit says the plan risks the “potentially catastrophic, widespread dissemination” of millions of books. The suit was filed in New York federal court in the name of writers groups from the U.S., Australia and Quebec, and individual authors like Faye Weldon. The suit asks the court for a series of dramatic remedies, including the permission to seize millions of digital works from the Universities of Michigan and California and to order the schools to cease cooperating with Google. The search giant is working to scan all of the world’s books, a project that some librarians once believed would take more than a thousand years.

Paul Aiken, executive director of the Author’s Guild, defended the proposed measures by saying writers’ were worried about the “security protocols for seven millions books” and that the schools had disregarded the law by embarking on a maverick project with Google. “There’s nothing in the copyright law about orphan works — this is their own hand-drawn definition.”

Several universities contacted by paidContent said they were surprised about the lawsuit. “We had no wind of this,” said Paul Courant, Michigan’s Dean of Libraries. “We were in an amiable discussion that appears to have gone off the rails.” Courant said the orphan works were important for scholarship and that the schools were confident their activities were fair use.

Kenneth Crews, a law professor and librarian at Columbia University, said it is too early to tell how the litigation will unfold but that it is sure to turn on definitions of fair use.

Even if the New York court buys the authors’ argument, few judges are likely to put their stamp on an order allowing the seizure of computer servers from a public university to stop the publication of a handful of orphan works. It’s one thing to bust up a software piracy operation — it’s another to let lawyers and bailiffs storm the University of Michigan’s library.

This situation is a far cry from a year ago when the Authors Guild and the universities were still “partners” in an ambitious plan with publishers and Google to build the world’s biggest online library. That plan — known as the Google Books Settlement — was rejected in March by Judge Denny Chin at the request of a coalition led by Google rivals, Amazon (NSDQ: AMZN) and Microsoft (NSDQ: MSFT). The settlement is the subject of a further court hearing this Thursday at which the parties are widely expected to throw in the towel.