End of the Line for Google Books Lawsuit?

Copyright experts say U.S. Supreme Court is unlikely to take up the Authors Guild's case against Google, a decision that likely would end more than a decade of litigation.

January 5, 2016
 
Authors Guild

The Authors Guild’s decade-long legal battle with Google reached the U.S. Supreme Court last Thursday, as the professional organization asked the court to settle whether or not book digitization represents “copyright infringement on an epic scale.”

The appeal does not mean the Supreme Court will hear the case and issue a broad ruling on copyright, however. The court receives thousands of appeals a year (known as petitions for a writ of certiorari) and hears less than 5 percent of them. Authors Guild v. Google joins this year’s total, but legal experts said it is unlikely the case will make the cut.

“The Supreme Court typically takes cases when there are important unsettled issues of law that need to be decided or in cases of overwhelming importance,” said James Grimmelmann, professor of law at the University of Maryland at Baltimore. “This case might have seemed like a case of overwhelming importance a decade ago, but it has dragged on for so long and the ground has moved so much in copyright that it doesn't have that urgency.”

The case dates to September 2005, when the Authors Guild sued Google over its book digitization project, Google Books. Working with libraries, Google has scanned tens of millions of books, making their contents searchable and displaying sample pages online -- without asking the copyright holders for permission.

“That, in itself, was an act of theft,” the Authors Guild writes on a question and answer page of its website that expands on the organization’s decision to take the case to the Supreme Court. “If you did it with a single book, you’d be infringing.”

Google, meanwhile, has defended itself by saying its digitization efforts fall under the “fair use” doctrine, which limits the rights of copyright holders. The company has argued that creating digital copies of copyrighted books is an example of “transformative” fair use, which the Supreme Court has said is one of the most important factors for determining whether someone broke the law.

After a $125 million settlement fell through, the case has worked its way through the courts -- which have so far sided with Google. In November 2013, a U.S. District Court judge ruled that Google Books has become “an essential research tool,” as it “digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers and others find books.”

The Authors Guild appealed that decision, but a three-judge panel of the U.S. Court of Appeals for the Second Circuit reached the same conclusion. “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about plaintiffs’ books without providing the public with a substantial substitute for matter protected by the plaintiffs’ copyright interests in the original works or derivatives of them,” Judge Pierre N. Leval wrote for the unanimous court.

In explaining its appeal to the Supreme Court, the Authors Guild said the courts “are not seeing the big picture” on fair use. The organization is not looking to shut down Google Books, it writes, but rather require Google to ask for permission from authors and pay them.

“We believe that the Second Circuit court took a myopic view of fair use law in its ruling and that the Supreme Court needs to step in and correct this,” the Authors Guild writes. “The Second Circuit, blinded by the public-benefit argument of Google Books supporters, overlooked the fact that it completely cuts authors out of the equation.”

Should the court not take the case, other digitization efforts may see it as a sign to proceed, the organization warns. “As a result, many authors’ books could become widely digitized and available for free on the Internet,” it writes.

The petition asks the court to settle four questions: whether Google’s digitization truly qualifies as “transformative” fair use, whether the lower court relied too much on the “transformative” factor, whether the lower court should have more closely considered Google’s profit-driven motivation and whether organizations such as the Authors Guild even have the standing to take legal action on behalf of their members.

Grimmelmann said the Authors Guild faces an “uphill battle” to convince the court that any of those questions need to be reconsidered -- especially since Leval, an influential legal scholar who has helped shape the fair use debate, wrote the appeals court’s opinion.

“I don’t see a lot of room for headway,” Grimmelmann said.

Still, the decision to take the case all the way to the Supreme Court does not come as a surprise, said Nancy Sims, copyright program librarian at the University of Minnesota.

“They've been staking a lot on the case throughout,” Sims said in an email. “They obviously believe that this litigation process is the best possible use of their resources in service of their constituents.”

The Association of American Publishers, which also sued Google in 2005 but settled six years later, declined to comment on the case’s most recent development.

The Supreme Court will decide later this spring whether to hear the case. Should the court grant certiorari, the case likely wouldn’t be heard until this fall.

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