At its conference on Friday, April 15, the Supreme Court declined to take up Authors Guild v. Google, effectively ending the case after more than a decade of litigation. As is customary, the high court did not comment (beyond noting that justice Kagan did not participate in the decision) and merely listed the case as denied for Certiorari.
The decision was not unexpected. Legal observers had given the Authors Guild slim odds at winning a review, given that two separate appeals panels have unanimously affirmed that Google’s scanning and indexing of out-of-print books from library shelves was a fair use under U.S. copyright law.
In its final 13-page brief filed with the Supreme Court on March 15, attorneys for the Authors Guild claimed that the “balance” of copyright was at stake in their appeal.
“At the heart of this conflict is a fundamental disagreement about how to apply the Copyright Act in the digital age,” guild attorneys argued, “an issue this Court must resolve, as more and more content is digitized and becomes susceptible to mass infringement.”
Google attorneys, meanwhile, countered that the lower courts had correctly decided the case, pointing out that the scanned copies do not compete with the original works, and that Google's corpus offers significant public benefit, enabling users to find and search works that would in many cases be lost to history.
A Long, and Winding Road
The Supreme Court’s denial caps what has been a defining legal drama for publishing in the digital age.
The Authors Guild vs. Google was first filed in September of 2005 (followed by a second, similar suit from publishers in October, 2005). In 2008, the litigation was shelved while all three parties (Google, the publishers, and the Authors Guild) stumped for a controversial settlement. In 2011, however, Judge Denny Chin rejected the settlement, amid strong opposition, which included Amazon, and the U.S. Department of Justice.
Following the settlement’s rejection, the Authors Guild doubled down on its infringement claims by filing 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. In his ruling, Baer concluded that he could not imagine a definition of fair use that would compel him to shut down what he called an “invaluable contribution to the progress of science and cultivation of the arts.”
Shortly after Baer’s ruling, in October, 2012, the publishers’ dropped their suit against Google. “Basically when the case was filed seven years ago, that was a long time ago,” AAP president Tom Allen told PW at the time, explaining the decision not to carry on with the litigation. “The world has changed a lot.”
“[Google Books] has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers,” Chin wrote in his opinion. “Indeed, all society benefits."
And in October, 2015, another Second Circuit panel (led by prominent fair use jurist Pierre Leval) unanimously upheld Chin’s decision, holding that Google’s scanning as well as its display of short "snippets" of text were fair uses, and that "Google's commercial nature and profit motivation" did not justify denial of fair use.
The Authors Guild expressed its disappointment in a blistering, two-page statement, in which Authors Guild president Roxana Robinson called the decision “a colossal loss” for authors. "We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes.”
Mary Rasenberger, executive director of the Authors Guild asserted that the courts were “blinded by the public benefit arguments,” made by Google. “The price of this short-term public benefit may well be the future vitality of American culture,”
“The denial of review is further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector," Robinson added, "not only with books, but across the spectrum of the arts.”
A Google spokesperson told PW that the company was grateful that the Supreme Court stuck by the Second Circuit's conclusion that Google Books is consistent with copyright law. "The product acts like a card catalog for the digital age," the spokesperson stressed, "giving people a new way to find and buy books while at the same time advancing the interests of authors."
We will update this story with reactions, as they come in.