A three-judge panel of the Second Circuit Court of Appeals heard oral arguments on December 3 in Authors Guild vs. Google, and although the scheduled 30 minutes for argument stretched to roughly 90 minutes, it’s not clear that the extra time helped the Authors Guild in its uphill bid to reverse Judge Denny Chin’s 2013 summary judgment in favor of Google.
The appeal hearing is the latest twist in the Guild’s nine year battle against Google over its program to digitize out-of-print library books. The suit was first filed in September of 2005, but was shelved for three years while the parties stumped for a controversial, ultimately rejected settlement. In 2011, the Guild filed a parallel suit against Google’s library scanning partners, Authors Guild vs. HathiTrust. But in October 2012, Judge Harold Baer delivered an emphatic summary judgment ruling in favor of the HathiTrust. A year later, Chin echoed Baer's findings in his ruling for Google. And in June of this year, the Second Circuit unanimously affirmed Baer’s HathiTrust verdict.
In his argument Wednesday, AG attorney Paul Smith quickly sought to differentiate the Guild’s case against Google from its unsuccessful HathiTrust case, citing Google’s commercial nature. But almost immediately, Judge Pierre Leval shut him down, telling Smith he would not succeed by arguing that Google’s commercial nature precluded fair use. Smith, however, pressed on, arguing that Google’s scanning deprived authors of a potential market to license books for search. Again, Leval pushed back, noting the transformative nature of the use is what mattered most, not whether somebody might potentially pay to make that use.
Smith, however, argued that Google should not be allowed to profit from a database of unlicensed works, and insisted that such a stretching of fair use usurped Congress’s explicit role to set policy in this arena, and would encourage others to use copyrighted works without permission. “You have to anticipate what people will do with this decision,” Smith argued. “If you bless [Google Books], the cows are out the barn door forever.”
Smith also argued that Google’s program differed from HathiTrust because Google displayed snippets—an argument that was the subject of some speculation after the Second Circuit, in its decision upholding the HathiTrust verdict, wrote that it was “important” that the HathiTrust does not display any of the works made available for searching.
The judges did not seem terribly concerned with snippets, however, and Smith offered only a tortured argument: Snippets “are not harmless,” he said, because researchers can use Google to look up quotes, passages, and facts, without ever having to buy the book. Curious, considering that this kind of transformative search functionality is at the very heart of the Google project, and was in fact praised by judges Chin and Baer, and in the Second Circuit’s HathiTrust decision. In fact, in oral arguments in the Google case, Chin even acknowledged that his law clerks use Google Books to do cite checks.
Arguing for Google, attorney Seth Waxman largely stuck to the script that has served Google well thus far: he argued that Google’s database “quintessentially” promotes the progress of the sciences and useful arts.
Waxman portrayed the program as a collaboration between libraries and Google—with libraries benefiting from Google's scale and technology, and Google benefiting from the libraries’ collections. And lastly, he stressed that there was no evidence of any market harm, and there was no issue with security as the record shows there has not been one security breach of Google Books in a decade.
Judge Cabranes pushed Waxman on Google’s underlying profit motive, getting Waxman to concede that Google did see the project as having value to its business, despite having made no profit on the project, and investing over $125 million in it.
But Waxman only conceded what was already on record: that Google does benefit from the database by drawing people to Google’s search engine and other services. Not exactly a bombshell revelation, as Judge Chin had acknowledged that he considered Google's business aims in his 2013 ruling.
“Google does, of course, benefit commercially in the sense that users are drawn to the Google websites by the ability to search Google Books,” Chin wrote. But while that was “a consideration to be acknowledged,” Chin added, and even assuming Google's “principal motivation is profit," the project also "serves several important educational purposes.”
There was no timetable on a decision from the Second Circuit.