The Authors Guild this week filed with the Supreme Court its final reply brief in Authors Guild vs. Google, meaning the high court could soon decide whether to review long-running case over Google’s library scanning program. In a 13-page brief filed March 15, attorneys for the guild, urged the court to hear its appeal, claiming that the “balance” of copyright is at stake.
“At the heart of this conflict is a fundamental disagreement about how to apply the Copyright Act in the digital age,” guild attorneys argue, “an issue this Court must resolve, as more and more content is digitized and becomes susceptible to mass infringement.”
The brief comes after Google this month filed its Brief in Opposition with the high court, arguing that the Second Circuit’s unanimous decision in the case is “correct, and does not conflict with any decision of this Court or any other court of appeals,” and therefore “does not warrant...review.”
The latest—and most likely final—round of briefs comes after the Authors Guild in October lost its appeal in its long-running battle with Google. On December 31, the guild petitioned the Supreme Court for a review, arguing that the Second Circuit’s unanimous decision represented "an unprecedented judicial expansion of the fair use doctrine that threatens copyright protection in the digital age.”
In its opposition brief, however, Google attorneys fired back at the guild’s claims, arguing that the appeals court correctly found its scanning of out-of-print books from library shelves was “transformative,” because the copies do not compete with original works, but are used for indexing and discovery purposes, benefiting users as well as rights holders.
“Google Books simply enables users to find the books they want to read,” the Google brief states. “Although [The Authors Guild] claimed that Google Books preempted a licensing market for similar digital search tools, the Second Circuit correctly concluded that copyright law does not recognize any exclusive right to furnish information about a work. In any event, there was no evidence of any existing, or likely future, licensing market for such a purported derivative use.”
In their reply, guild attorneys reiterated their concerns, including that the Second Circuit decision expands the definition of a “transformative use” well beyond accepted bounds, and would essentially sanction the wholesale copying of creative works, putting copyright holders at risk.
“The Second Circuit was…required to consider the consequences of authorizing countless other actors to bypass getting licenses before building full-text databases of copyrighted works and displaying portions thereof,” AG attorneys stress in their reply brief. “As we enter an era when the primary means of distribution for books will be digital, it would be alarming for the courts to authorize any and all entrepreneurs to build digital collections of the entire canon (with no specific security requirements) and then display whatever portions they choose (subject only to after-the-fact and unpredictable judicial rulings about whether they have gone too far).”
Although there is no specific timeline, the case is now fully briefed and the Supreme Court could soon schedule it for conference, meaning the final act in the case could be upon us after 10-year legal odyssey.
The suit was first filed in September of 2005, but was shelved for three years while the AG, Google, and a group of publishers stumped for a controversial settlement that was ultimately rejected by Judge Denny Chin.
UPDATE: The Supreme Court has now placed the case on the Calendar for its April 1 conference.