Late Friday afternoon, the Authors Guild filed its appeal in its copyright infringement lawsuit against Google, asking the appellate court to reverse a lower court’s ruling that granted summary judgment to Google, while denying the Guild’s request for partial summary judgment. The suit stems from Google’s scanning of in-copyright books without permission of authors as part of its Library Project. In its appeal, the Guild hammers away on the fact that the Library Project was, at its a core, a commercial initiative by Google and not some altruistic plan to create a digital archive of literature. “Google must not be permitted to build its financial empire of the backs of authors,” the brief states.
The appeal continues the argument the Guild’s attorney, Jan Constatine, made before Congress a few weeks ago, when she said that Google’s Library Project was done in response to Amazon’s launch of Search Inside the Book and was designed to enrich Google’s search engine by adding information from millions of books. While Amazon’s Search Inside the Book function is aimed at selling more books, Google’s Library Project was nothing more than an effort to enhance Google’s site that is “focused on selling advertisements and keeping the resulting revenue,” the brief states. Later in the brief, the Guild contends that the unauthorized copying “lured potential book buyers away from online bookstores and provided no compensation to rightsholders for Google’s revenue-generating uses of their books.”
The appeal expressed wonderment about how the District Court could have upheld the Library Project when, about two years earlier, it had been “broadly critical” of the program when it rejected a settlement proposal between authors, publishers, and Google. The appeal said the lower court’s ruling in granting summary judgment was deeply flawed and relied on an “unprecedented, expansive and erroneous interpretation of the fair use doctrine.”
The appeal is the latest step in a legal process that began in September 2005 when the Guild sued Google, charging that the Library Project “constitutes copyright infringement on a massive scale.” The district court approved a preliminary settlement in 2008. But in March 2011, after conducting a fairness hearing in response to objections to an Amended Settlement Agreement, Judge Denny Chin rejected the final settlement, saying questions raised by the proposed terms were “a matter more suited for Congress than this Court.” Following Chin’s ruling, the publishers settled with Google in October of 2012.
Notably, this is the Authors Guild's second appeal involving Google's scanning program. In 2012, the Authors Guild filed an appeal of Judge Harold Baer’s landmark copyright decision in the Guild's parallel case against Google's library scanning partners, the Authors Guild vs. HathiTrust.
The language in the AG's latest appeal seeks to counter Judge Chin’s view that the Google Books project “provides significant public benefits," while maintaining "respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders,” as Chin wrote in his November, 2013 decision. This interpretation, the Guild argues, “completely ignored evidence demonstrating that (a) Google embarked on its Library Project for the sole purpose of gaining a competitive advantage and increasing revenue, and (b) the scope of Google’s Library Project dwarfs that of any prior fair use case.”
According to the Guild, under the Library Project, Google has scanned over 20 million books and given 2.7 million scanned e-books to its library partners.