The Israeli Google Books Class Action

Last week, Google Books suffered another legal attack in the form of a class action, this time in Israel. I have been reading through the complaint and the class action motion this morning. Below my short description and initial assessment.

Plaintiff is the author and sole rights holder in a book printed and published in Israel in 2003. Google, which introduced Google Books in Israel in 2010, scanned among many others also that book, and has been providing snippets view to short excerpts from the text.

Plaintiff filed an action for copyright infringement and unjust enrichment, as well as a motion for approval of the suit as a class action under the Israeli Class Action Law of 2006 (inofficial translation).

The complaint describes Google Books as the “the broadest and bluntest copyright infringement in books in human history.” (All translations are mine.) According to plaintiff, Google has already scanned, stored and publicly displayed “thousands of books (perhaps even tens or hundreds of thousands of books) in the Hebrew language by Israeli authors, as well as books initially published in Israel, which are protected under Israeli copyright law.”

The complaint states that Google Books activities in Israel infringe four exclusive copyrights secured under the Copyright Act of 2007, namely, the reproduction right, the public display right, the broadcasting right and the exclusive right to make works publically available.

According to plaintiff’s “very conservative” estimate, the aggregated monetary damage to all class members reaches the order of hundreds of millions of NIS. The remedies sought include a declaratory judgment concerning the infringing nature of Google’s operations, an injunction for stopping all infringing activities, the removal and/or deletion and/or destruction of all scans unlawfully created and damages.

A few words about Israeli class action law in context: As in the United States, a class action suit requires a court approval. A class plaintiff must have a cause to sue, in certain matters, and that cause must invoke substantial questions of fact or law shared by a group of people in the name of that group.

A court may approve the lawsuit as a class action if certain statutory requirements are met:
- The suit raises substantial questions of fact or law shared by all members of the group, and there is a reasonable chance for a decision in favor of this group regarding those questions;

- A class action constitutes the efficient and fair way of solving the dispute under the circumstances;

- There is a reasonable basis to assume that the interest of all class members be properly represented and managed;

- There is a reasonable basis to assume that the interest of all class members be represented and managed in good faith.

Plaintiff argues that all conditions are satisfied here. The motion for class action approval defines the class as “all publishers and all authors that are owners of copyrights under Section 8 of the Copyright Act.” This definition includes books first published in Israel and unpublished books of which authors were citizens or residents of Israel at the time of creation.

Approving a suit as a class action, the court must define the class (either as pleaded by plaintiff or otherwise). The definition cannot include persons having causes of action created subsequently to the approval as class action. (As a side note, it appears that including owners of yet-to-be-scanned-books is impossible, and, by extension, the so-called “looking forward” business models Judge Chin has criticized in his decision cannot be subject of a settlement also under Israeli law.)

Indeed, Israeli class action law is familiar with the instrument of a class action settlement. Such settlement is subject to a court approval, and sec. 19(a) to the Class Action Law stipulates that a court shall not approve a settlement unless it has found it to be “adequate, fair and reasonable” (sounds familiar?), while taking into account the interests of all class members.

Down the road, it is conceivable the parties would prefer to settle and submit the settlement draft for a court approval. The readiness of the parties to negotiate a class action settlement would likely be a function of their chances to win or lose in trial. Take the accusation Google violates the reproduction right, for instance. I do not think it could be seriously argued that scanning and storing complete titles does not implicate that right, whether under Israeli law or under the law of any county member of the Berne Convention. However, unlike most copyright jurisdictions worldwide, Israel has a fair use provision modeled very similarly after its American predecessor.

Google most certainly will raise this fair use provision as a principal defense. Regarding scanning for indexing purposes and snippets view, it might even convince the court to apply this recent and virtually untested provision in its favor. In that event, an Israeli court might have the chance to scrutinize a fair use defense to Google Books earlier than courts in other jurisdictions.

By virtue of the class definition, a settlement or a judgment here would cover significantly fewer works and authors compared to the parallel proceeding in the United States. In this respect, it is of less interest to outside observers. For fair use fans, however, perhaps the fun is just about to start.

- Thanks to Nati Polinger (attorney for plaintiff) for providing quick access to the court documents.

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