The opinion of the court was delivered by: Chin, Circuit Judge
Before the Court are two motions. First, defendant Google, Inc. ("Google") moves to dismiss the claims of the associational plaintiffs in both of these cases.*fn1 Second, the three representative plaintiffs in the Authors Guild action --Betty Miles, Joseph Goulden, and Jim Bouton (the "AG Representative Plaintiffs") -- move for class certification. For the reasons stated below, Google's motions to dismiss the claims of the associational plaintiffs are denied, and the motion for class certification in the Authors Guild case is granted.
The following facts are not in dispute. In 2004, Google announced that it had entered into agreements with several major research libraries to digitally copy books and other writings in their collections (the "Library Project"). Since then, Google has scanned more than 12 million books. (See Zack Decl. Ex. 7 at 3). It has delivered digital copies to the participating libraries, created an electronic database of books, and made text available for online searching. See Authors Guild v. Google, 770 F. Supp. 2d 666, 670 (S.D.N.Y. 2011) (citing Emily Anne Proskine, Google's Technicolor Dreamcoat: A Copyright Analysis of the Google Book Search Library Project, 21 Berkeley Tech. L.J. 213, 220-21 (2006) (describing project)). Google users can search its "digital library" and view excerpts --"snippets" -- from books containing search results. Id. (See also Zack Decl. Ex. 7 at 3). For example, when a user enters a search term on the Google Books website, Google displays a list of books containing that term. In many cases, when the user clicks on the link to a particular book, Google displays up to three "snippets" of text from that book -- each about an eighth of a page -- each of which contains the search term. (See Gratz Decl. Ex. 1; Zack Decl. Exs. 7, 10-12).
Millions of the books scanned by Google were still under copyright, and Google did not obtain copyright permission to scan the books. Authors Guild, 770 F. Supp. 2d at 670 & n.3.
B. The Authors Guild Action
In 2005, the Authors Guild and the AG Representative Plaintiffs (together, the "Authors Guild Plaintiffs") brought a class action, charging Google with copyright infringement. Specifically, the Authors Guild Plaintiffs allege that by reproducing in-copyright books, distributing them to libraries, and publicly displaying "snippets" of those works for search, Google "is engaging in massive copyright infringement." (AG 4th AC ¶ 4). The AG Representative Plaintiffs seek damages and injunctive and declaratory relief. The Authors Guild seeks only injunctive and declaratory relief.
Also in 2005, several publishers initiated their own action. They are not parties to the instant motions.
The Authors Guild Plaintiffs, the publishers, and Google engaged in document discovery and, in the fall of 2006, began settlement negotiations. On October 28, 2008, after extended discussions, the parties filed a proposed settlement agreement. The proposed settlement was preliminarily approved by Judge John E. Sprizzo by order entered November 17, 2008. (ECF No. 64). Notice of the proposed settlement triggered hundreds of objections. As a consequence, the parties began discussing possible modifications to the proposed settlement to address at least some of the concerns raised by objectors and others. On November 13, 2009, the parties executed an Amended Settlement Agreement ("ASA") and filed a motion for final approval of the ASA pursuant to Federal Rule of Civil Procedure 23(e). (ECF No. 768). I entered an order preliminarily approving the ASA on November 19, 2009. (ECF No. 772).
Notice of the ASA was disseminated. As was the case with the original proposed settlement, hundreds of class members objected to the ASA. A few wrote in its favor. The Department of Justice ("DOJ") filed a statement of interest raising certain concerns. (ECF No. 922). Amici curiae weighed in, both for and against the proposed settlement. I conducted a fairness hearing on February 18, 2010. The Authors Guild actively participated in all these proceedings.
On March 22, 2011, I declined to grant final approval of the ASA because, inter alia, "the ASA contemplates an arrangement that exceeds what the Court may permit under Rule 23." Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 667 (S.D.N.Y. 2011). Specifically, I found that the ASA was "an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court." Id. (citation and internal quotation marks omitted).
In 2010, several individual photographers and illustrators (the "ASMP Representative Plaintiffs") and the ASMP Associational Plaintiffs (together, the "ASMP Plaintiffs") brought another class action charging Google with copyright infringement. The ASMP Plaintiffs represent individuals who hold copyright interests in certain photographs, illustrations, and other visual works that appear within the books that Google has copied. They allege that Google's activity in connection with the Library Project has infringed on their copyrights as well.
(ASMP FAC ¶¶ 4-5). The ASMP Representative Plaintiffs seek damages and injunctive and declaratory relief. The ASMP Associational Plaintiffs seek only injunctive and declaratory relief.
D. Recent Procedural History
The Authors Guild Plaintiffs filed their Fourth Amended Class Action Complaint on October 14, 2011. (ECF No. 985). The ASMP Plaintiffs filed their First Amended Class Action Complaint on November 18, 2011. (ECF No. 29). Google's principal defense in each of these actions is "fair use" under § 107 of the Copyright Act, 17 U.S.C. § 107.
On December 12, 2011, the AG Representative Plaintiffs moved for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. On December 22, 2011, Google moved to dismiss all associational plaintiffs for lack of standing under Rule 12(b)(1). The Court held oral argument on both motions on May 3, 2012, and reserved decision.
First, I will address Google's motions to dismiss the claims of the associational plaintiffs for lack of standing. Second, I will address the motion for class certification in the Authors Guild case.
Ordinarily, for a plaintiff to have standing, the plaintiff must "'be himself among the injured.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). One exception to this general rule is "associational standing." Warth v. Seldin, 422 U.S. 490, 511 (1975) ("Even in the absence of injury to itself, an association may have standing solely as the representative of its members."); Nat'l Motor Freight Traffic Ass'n v. United States, 372 U.S. 246 (1963) (per curiam). "While the 'possibility of such representational standing . . . does not eliminate or attenuate the constitutional requirement of a case or controversy,' [the Second Circuit has] found that, under certain circumstances, injury to an organization's members will satisfy Article III and allow that organization to litigate in federal court on their behalf." Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281 (1986) (quoting Warth, 422 U.S. at 511) (internal citations omitted).
"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The parties agree that the first two prongs of the Hunt test are satisfied here. It is the third prong that is at issue and requires further discussion.
The third Hunt prong is not a constitutional standing requirement; it is prudential. See United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555 (2d Cir. 1996). "[O]nce an association has satisfied Hunt's first and second prongs assuring adversarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to see a constitutional necessity for anything more." Id. at 556, 558 (holding that Congress did not exceed its authority by authorizing union to sue for violation of statute on behalf of its members). Indeed, Hunt's third prong focuses on "matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution." Id. at 555-57; Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 229 (2d Cir. 2011).*fn2
Nonetheless, to determine whether the third Hunt prong is satisfied, courts look to the degree of "individualized proof" required to assert the claim and grant the requested relief. Open Soc'y, 651 F.3d at 229-30. Claims for which damages are sought, for example, often require proof of harm on an individualized basis, thereby defeating any "administrative convenience" achieved by allowing an association to sue on behalf of individual members. See Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (denying standing because claims were for bodily injury and property damage and ...