For the last 11 years, the Authors Guild has been engaged in a legal battle against Google. What did Google do? Well, it borrowed 20 million books from the library — 4 million of which were still protected by copyright — and scanned them into a digital database. Then, it made excerpts of these books available to the public through its Google Books Search engine, although authors can request to have their books removed from the “snippet view” function. The Authors Guild sued on behalf of its members, alleging copyright infringement.
The Authors Guild lost the case in 2013 at the district court level, and then again in 2015 at the circuit court level. Now, they want to see whether the U.S. Supreme Court will have a different opinion (our highest court has not yet decided whether it will hear the case).
In their petition for certiorari, the Authors Guild claims that the Second Circuit incorrectly affirmed the District Court’s grant of summary judgment in favor of Google. The court determined that Google’s conduct constituted a “transformative use” of the copyrighted works, making it a “fair use” exception to copyright protection. As the Second Circuit concluded:
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.
The Second Circuit was similarly unconvinced that Google’s “overall profit motivation” was sufficient to deny “its highly convincing transformative purpose” and “the absence of significant substitutive competition.” Put simply, the Second Circuit held that Google Books gives readers access to far more information about those books than they had before without actually serving as a substitute for buying the books themselves.
Appalled, the Authors Guild argue in their petition for cert that the Second Circuit was wrong to find that copying entire books and displaying portions of them —which they claim “involv[es] no new expression”— should be “immunized as ‘transformative [simply because] it provides sufficient social benefits… like helping people find books or information.”
Members of the public, however, aren’t the only ones who benefit from Google’s search engine. The Authors Guild’s members do too. This is how the Authors Guild describes what Google has done (in the petition for cert):
Did you notice that last line? Google includes links to where the book may be purchased after enticing users with excerpts (not the entire book). That sounds like advertising to me. A lawsuit is certainly a funny way for the Authors Guild to thank Google for it.
*The Second Circuit also concluded that the Authors Guild did not have standing to sue Google.
**According to The Guardian: “The Authors Guild’s move for an appeal is also backed by publishers Elsevier and Hachette, the American Society of Journalists and Authors, the US Copyright Alliance and the Copyright Clearance Centre.”
***For another head-scratching moment courtesy of the Authors Guild, see Author Scott Turow’s Red-Baiting Rant. (Turow was the President of the Authors Guild).