Saturday, February 20, 2016

Books Books Books - Is The Google Books Case The Most Important Copyright Case In Our Lifetime?


At a reception at Fordham Law School in New York city an attorney friend from Germany shook the hand of Judge Denny Chin and said that it was an honor for him to shake the hand of the man who had decided the most important case in copyright history.

A petition for certiorari filed by the Authors Guild on December 31, 2015 (found here) seeks to undo all that.   The petition is assigned case number 15-849.  On February 1, 2016 various amici curiae filed briefs.

The petition seeks to overturn the Second Circuit's decision authored by Judge Pierre Leval
in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. October 16, 2015)(opinion herethat affirmed the district court's grant of summary judgment in Google's favor based on the fair use doctrine of the Copyright Act 17 U.S.C. 107. The petition makes a compelling case that the circuit courts of appeals have taken different views of what constitutes "fair use" and that this case is an appropriate vehicle for the Supreme Court to give the circuit courts guidance.  When the U.S. Supreme Court takes on a case, it is less interested in whether a particular court of appeals got the case right or wrong, than whether the courts of appeals are divided or inconsistent on important questions of law.  For a good brief discussion of how to write a convincing cert petition, check out SCOTUS blog's Kevin Russell here.  As Russell points out, briefs of amici curiae can make a big difference in how the Court views the importance of the question presented.

The case has procedural twists and turns relating to class certification, summarized well here by EFF. Here is Copyright Litigation Blog's post on the 2013 decision vacating the class certification decision and remanding for a fair use determination.  Here is my post on Judge Chin's 3/23/2011 rejection of class certification.

Judge Pierre Leval is a famous copyright law scholar.  His opinion for the court is thoughtful, insightful, and breaks new ground in the fair use doctrine.  I may be mistaken, but I think Judge Leval's opinion provides the first distinction between "transformative work" and "transformative purpose" - a distinction that the petition takes him to task for.  It is a distinction that makes a lot of sense to me.   When reading the cases about video engines using low resolution images to enable searches, I never believed that the thumbnails were "highly transformative" in the way the Ninth Circuit posited, I just thought that the Ninth Circuit liked the very useful video search engines and found a reason to reach that result.

The Second Circuit's October 15 decision breaks new ground and makes sense of the video search engine cases.   The reason a video search engine or a Google books search is transformative is that it simply provides information ABOUT the copyrighted work, without providing a substitute for the work.   Important to the analysis was that folks using Google books could only get small snippets of the books and a total of 16%, but not the 16% that the user was trying to get.  In other words, just enough to enable the users to find useful books, eliminate irrelevant books, but not enough to be useable as a substitute for purchasing the entire book.  This is what the Second Circuit is calling a "transformative purpose".

In a digital world where making access to copyrighted works is extremely important, Judge Leval's analysis seems to make the most sense, whether or not you agree with the result.  There is a hot debate elsewhere about whether the first sale doctrine should apply in the digital world and whether technology upstarts should be at risk for billions in copyright infringement when pushing the technology envelope.   For a recent Department of Commerce White Paper that discusses the debate, visit here.  Although the Google Books case deals with legacy books, it has an impact on author's rights moving forward that the Authors Guild is deeply concerned with.

In the art law context, there has always been some debate about using high quality reproductions of artworks in auction catalogues.  In my estimation, Judge Leval's analysis would, for example, provide a meaningful rationale for auction houses to argue fair use in compiling visual information about artworks offered for sale.  The high quality digital reproductions themselves are not transformative "works" in my opinion, but the works are created or reproduced for a transformative purpose: i.e., there is no other way to convey information about those artworks to the relevant public for a limited purpose that does not displace the artist's market for the works and is not a substitute for the real thing.

Enough inside baseball.  What is the underlying that case about?  As the cert petition dramatically opens, Google backed up moving vans to the nation's greatest libraries in 2004, took all of the books, scanned them, gave scanned copies to the libraries, and kept copies for themselves.  All without the permission of the authors or publishers.  Google then created Google Books, a feature that permitted users to search snippets of books using Boolean word searches.

According to news reports at the time, most of the world's knowledge was under copyright and out of print.  Google was a bold upstart with an unproven business model.   In 2016, twelve years later, the Authors Guild's cert petition cites the over $36 billion in ad revenue that Google generates annually.  Along the way, Google permitted authors and publishers to opt in and opt out of the Google Books search feature.  My recollection is that there were many reports that authors were finally getting payments on books that had been long-forgotten by publishers.   The general public consensus was that publishers had failed to keep works in print, failed to support authors, and that Google was a savior to both authors and the publishing industry.

The Authors Guild's (well-written) take from

On October 16, 2015, the United States Court of Appeals for the Second Circuit reached a decision in our copyright infringement lawsuit Authors Guild v. Google. In holding that Google’s wholesale copying of millions of copyrighted books to develop its profitable Google Books program was fair use, the court failed to see the damaging effect that uses such as Google can have on copyright incentives and on authors’ potential income. We trust that the Supreme Court will see fit to correct the Second Circuit’s reductive understanding of fair use, and to recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience, and vitality of our intellectual culture.

A bit more from

I’m a writer and I like Google Book Search. I use it all the time. What’s the problem?Google Books itself is not the problem. We’re all writers here, and we generally like Google Book Search. Some of us use it for research all the time.
The problem is that Google used authors’ books for profit-making purposes without first getting permission from authors. It just went ahead and copied them many times over and extracted their value, without giving the authors any piece of it. There are lots of other great commercial uses of books; the difference is that most users abide by the law and get permission. If corporations are now free to make unauthorized copies of books for profit as long as there is some public benefit to the copying, then authors’ incomes will suffer even more than they have in recent years.
A truism of the digital age is: whoever controls the data owns the future. Google’s exclusive access to such an enormous slice of the world’s linguistic output cemented its market dominance and continues to this day to further its corporate profits.

And, pushing the fair use envelope, a bit more:

Does the Authors Guild want to shut down Google Books?No. A resounding no. We did not ask the court to shut down Google Books, we simply asked it to require Google to get permission from authors and pay them for the scanning and use of their works.

In my humble opinion, that "resounding" part lacks credibility.  Hidden in the decision and the controversy is whether the Authors Guild has associational standing to represent dead and unknown authors who are not necessarily around to complain or opt out.  As a practical matter if neither Google nor the Authors Guild can get permission, the books are unreachable by scholars I think this is something that both sides have basically conceded. If I am incorrect or unfair on this point, I would be happy to update this post.

In the wake of Justice Scalia's passing, it will be interesting to see whether an eight-justice court takes up this tremendously important copyright case and whether Justice Ginsburg writes the opinion.

My book Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) has a chapter on Class Actions.  Check out the full table of contents here.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlawnd

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