February 16, 2018

Authors Guild Appeals Dismissal of Google Books Lawsuit

Google Books LogoLast 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.

Ian Chant About Ian Chant

Ian Chant is a former editor at LJ and a freelance journalist whose work has appeared in Scientific American and Popular Mechanics and on NPR.

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  1. As someone who had her book scanned and displayed for all the world to see, I find it hard to accept that Chin felt Google wasn’t violating copyright laws. First, Google did not get my permission as the copyright holder to scan my book. They just went ahead and scanned it, then uploaded almost 40 chapters, including the ending! After I filed a complaint, they whittled it down to 7 chapters, which is still not at all satisfying to me because I didn’t give them permission in the first place to scan it. Unfortunately, the damage was done with the first scan. I sold very few books because Google made it available to read and included the ending. I hope the Writer’s Guild wins this lawsuit.

    • Vitor Oliveira says:

      I don’t think that people actually read on Google Books. People who do are unlikely to have bought your book in the fist place. I understand your concerns regarding the scanning without permission but maybe you should look at the service as an opportunity instead of a threat. Old distribution methods are dying and digital is becoming the new normal. Google Books can be a way for people to discover your work and thus to get a copy on Amazon, for example.

  2. From the above that the Authors Guild position ” … is at odds with a significant body of court opinions at this point” and from Professor Grimmelmann: “They have made it quite clear that they view the last ten years of fair use case law as a giant mistake …”

    From the Authors Guild page brief Doc. 55 page 36:

    “Because this case involves the wholesale digitization and use of millions of works for commercial purposes, it is vastly different from the many fair use cases that challenged an artist’s or author’s unauthorized use of one or a small handful of copyrighted works for the purpose of creating a new work of creative expression.”

  3. I see that the digitizing of books by authors as a way of controlling what authors are able to convey to us the readers and lovers of stories that fire our imagination. If an author writes something that the company who is digitizing it doesn’t agree with or doesn’t want people to know about then it would be quite simple to expunge that from the book or text without people knowing that it was even there (other than the author) who may not be able to raise objections due to restrictions placed on them by the publisher. It seems to me that Amazon is trying to corner the market on what authors are being published and to what content is being published. If the digitizing company then takes control of publishing companies then it will have free range to edit, deny or expunge what it seems to go against what it wants readers to know about. This is true with print media as you never see a bad article about the owner of a newspaper(s) even though they sit and say “this is the most humbling day of my life” while people sit in disbelief as they are not taken to task over anything they do but their underlings are!
    I love books and have a large library (over 12,000 books and counting). I do not read from a tablet or kindle as I have never been able to trust what is not written down in the book (though I love grammatical and spelling errors) and I even talk to the books as I find myself in that world mentally.
    I wrote to one of my most favourite Authors to ask about his books being digitized and the reply from his publisher came back to me in my SPAM/JUNK email folder on Hotmail. this annoyed me greatly as I seem to get emails about Viagra and stupid porn through ok. I find it hard to fathom that what we say or is said to us through mediums that are not consistent with what Major Companies want us to believe or think are treated with vile contempt. I live in Australia and believe as most people do that freedom of expression/speech (within reason) and freedom of learning and imagination and to dream are inherent to people no matter what! if this is taken away are we not going down George Orwell’s 1984? or is it to late anyway?
    Yours Respectfully