I find one part telling:
Putting aside the merits of
Google’s claim that plaintiffs are not representative of the certified class
— an argument which, in our view, may carry some force — we believe that the
resolution of Google’s fair use defense in the first instance will necessarily
inform and perhaps moot our analysis of many class certification
issues,"
Emphasis mine. This is an appeal specifically on
the issue of class certification, and yet the appeals court is explicitly
setting that question aside and saying "We may not even have to get to that
question.". To me that'd be a fairly clear statement that they're expecting the
judge to go back and look at fair use as a blanket defense. And if I were the
judge I'd be taking that hint very seriously. It takes a bit to make an appeals
court go off-point and look at things not directly on appeal, and ignoring the
question after that is not a smart thing to do. [ Reply to This | Parent | # ]
|