Last November, Judge Denny Chin dealt a blow to the lawsuit filed by publishers and the Author’s Guild against tech giant Google and its Google Books service. Chin, of the 2nd Circuit U.S. Appeals Court, dismissed the case, which challenged the legality of Google Books providing searchable PDFs of copyrighted works. On Friday, April 11, the Guild filed an appeal in the case, marking the latest flareup in a long-running suit with major implications for copyright law in the U.S.
Google has been scanning books into Google Books since 2004. While titles that are in the public domain are available to read in their entirety and download, books that are still under copyright can only be searched by users, allowing users to read multiple paragraph “snippets” of titles that are relevant to their searches and offering links that let readers purchase ebook versions of the titles (when available) through companies like Amazon.
Google has been getting sued over the practice for almost as long as it has been around, with the Authors Guild filling the current suit in 2005. Chin rejected a proposed $125 million settlement in the case in 2011. The November dismissal was just the latest strike against the Guild’s lawsuit, which alleges that scanning the books and making them available to search amounts to a violation of copyright law. That argument didn’t hold water with Chin, who found in November that Google Books presentation of the works was protected as fair use.
In a statement accompanying the announcement, newly elected Guild president Roxanna Robinson took Google to task, accusing the company of a purely commercial motivation in scanning titles and making them searchable through Google Books. “Authors and authors alone have the right to decide whether and how their books are converted to ebooks,” Robinson said in a statement. “Yet in its effort to gain commercial advantage over competitors, particularly Amazon, Google chose to usurp that basic right, putting authors’ works and livelihoods at risk.”
Court watchers don’t seem to think the appeal will have much in the way of legs, though, as the argument is at odds with a significant body of court opinions at this point. “They have made it quite clear that they view the last ten years of fair use case law as a giant mistake, and they would like it reversed,” James Grimmelmann, a law professor at the University of Maryland specializing in Internet law told LJ. “It’s important not to rule out the chance that they could succeed, but their view is in tension with what is very well established case law.”
The Guild also proposed a new alternative to the content discoverability service Google Books provides to researchers and book browsers. “Congress should create a National Digital Library that would be available at every campus and in every community,” Robinson said in the statement. The Guild suggests that this non-profit digital library would do for books what the American Society for Composers, Authors, and Publishers (ASCAP) does for the music industry, offering a clearinghouse where authors and other rights holders could post full pages of published works—rather than just the “snippets” of relevant content that Google makes available for search. Unlike ASCAP, which is a compulsory service, authors would be free to refuse to participate in the proposed digital library.
The Guild released an outline of that proposal, which it hopes to lobby Congress for, on April 2, when the organization’s general counsel Jan Constantine testified before Congress about the need for such a service. “Ad hoc approaches to mass digitization of books and so-called orphan works are rife with problems and seriously endanger our literary culture,” Constantine told the House Judiciary Committee.
But, said Grimmelmann, it’s hard to get a legal ruling changed because the laws involved might change down the road. “Saying the court should decline to rule on the basis of the law as it is written because Congress might change that law is an odd position to be in,” he said.
The Guild is still involved in another related case against Hathi Trust, with the Guild’s appeal of a Hathi Trust victory in 2012 winding its way through the Second Circuit.