At its April 15 conference, the Supreme Court declined to take up Authors Guild v. Google, effectively ending one of the defining copyright battles of the digital age. The high court’s denial lets stand a unanimous ruling by the U.S. Second Circuit Court of Appeals that Google’s scanning and indexing of out-of-print books from libraries is a fair use under copyright law. What does the end of the case mean?
For the Authors Guild
In practice, the end of the case has no real impact on Authors Guild members. Google’s scanning has gone virtually uninterrupted since the suit was first filed in 2005, and despite dire predictions by some, the sky has not fallen—in fact, no evidence was presented at any point in the case that Authors Guild members suffered any direct harm from Google’s scanning.
It’s worth noting, too, as Pam Samuelson, law professor at University of California–Berkeley, and others have observed, that the vast majority of books scanned from libraries for Google Books are academic works, thus not written by the kind of authors whose interests are represented by the Authors Guild. And a significant percentage of those works are believed to be orphan works—that is, works that have no readily identifiable copyright owners.
So, what did the guild really lose? In addition to the significant cost of litigating this suit, the guild lost what it saw as a potential market. The Authors Guild believed that Google essentially deprived its members of the chance to license their works into an online search market. And the guild’s guiding principle from the beginning was that any time a copy is made for any commercial purpose (even if that purpose is to build an index, or a better search engine), the author should be paid.
U.S. copyright law, however, simply does not grant authors that kind of control over their works. And the courts discounted the idea that a licensing market for online search would ever emerge—at least a market sizable enough to outweigh the benefit to society that Google’s scanning offered.
“For a case that once held such importance for copyright law, it actually turned out to be pretty insignificant for authors, and for Google,” explained James Grimmelmann, a law professor at the University of Maryland who has followed the case extensively from the beginning, including as a contributing editor for PW. “The Authors Guild had this point of principle about what copyright stands for, and somehow they crossed that in their heads with the economic condition of authors today, and they held up Google as this egregious example of some larger trends in tech, and in copyright. But the principle at issue in this case, even if the guild had won, wasn’t going to make a whit of difference to those trends.”
For Google, the end of the case at least gives them peace of mind: their scanning program, as presently constructed, is legal. But at this point, with more than 20 million books scanned, the scanning is winding down, and most books now have digital editions that are opted in to Google Books.
Still, for many, the question remains: What are Google’s plans for these books? Some contend that Google got what it wanted out of the scanning project—lots of content that it has added to its search engine. But unless you believe that in today’s content-rich digital world there is untapped demand for scanned copies of out-of-print books, the answer is not much.
“We don’t have their numbers, but it is hard to imagine this program has been anything other than a huge money loser for them,” Grimmelmann said. “Just look at how neglected Google Books is in the Google properties at this point. It was never integrated into their other products. It looks like they never figured out how to handle Google Books after the settlement failed.”
Those suspicious of Google may still wonder what the company might eventually do with a corpus of scanned out-of-print books—and remember, Google does not sell ads against books scanned through the library program. But perhaps the most troubling answer to that question is: nothing. Because one has to wonder what good things might have happened if the two sides in this litigation had come together in a less adversarial way.
In a statement, Authors Guild officials called the Supreme Court’s denial a “colossal loss” for authors and bemoaned the “expansion of fair use” in the digital age. Executive director Mary Rasenberger suggested that the courts in the Google case were “blinded” by the “public benefit arguments.” And Authors Guild president Roxana Robinson added that the Supreme Court’s denial was “further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector.”
Others, however, including public advocacy group Public KnowIedge hailed the end of the litigation. “The Supreme Court’s decision to let the Second Circuit’s ruling stand reflects what we have long said, that fair use is a powerful and flexible doctrine that enables not only new works, but also innovative uses of existing works," said Raza Panjwani, Policy Counsel at Public Knowledge. "This denial will hopefully lead to new efforts to expand our access to culture and knowledge through digital formats.”
Jonathan Band, an attorney for the library community agrees. "I don't know if anyone else will create another search database for books," he told PW, "but others will create search databases for other sorts of materials, to the benefit of the public and the copyright owners."
But the theme voiced by Robinson—that the courts are enabling the tech sector to unfairly build its value off the backs of creators—has become an animating principle in a copyright policy fight that is slowly beginning to take shape. And while the Google case may have ended in the courts, the copyright fight in the policy arena is likely just getting started.
Last year, a congressional committee wrapped up a series of hearings on copyright reform, which included issues like digital first sale—that is, the right to resell a legally owned copyrighted work, like one would a physical book or a record. The Copyright Office under Maria Pallante has also explored mass digitization issues, collective licensing schemes, as well as orphan works legislation. There is even talk about overhauling the Copyright Office for the digital age, which everyone agrees is necessary. And most recently, the Authors Guild was one of a number of organizations to file comments on updating the Digital Millennium Copyright Act’s “notice and takedown” provision.
And like the Internet itself, the copyright conversation is global. On April 10, at the International Publishers' Congress in London, Hachette CEO Arnaud Nourry assailed what he called “vast exceptions to copyright law” for fair use proposed by the European Commission, suggesting that Google was the player most likely “to pose a clear and present danger” to the publishing industry. “What’s to stop them from defining themselves as a library and making all those books available for free?” Nourry asked.
As the battleground shifts, it's reasonable to question whether the guild’s unsuccessful, decade-long legal campaign helped or hurt the guild’s stance in pushing for copyright reform. In a statement, Authors Guild counsel Jan Constantine said the guild’s commitment to the suit “ensured that creators’ rights have remained at the heart of the conversation about the role of content in the digital age.”
Grimmelmann sees it differently. “I think it hurts them,” he said. “The way they lost this case, by litigating this through to four resounding fair-use decisions, the last of which was written by Pierre Leval [considered the nation’s foremost jurist on fair use], it’s hard to imagine any way to lay down stronger bricks for fair use than that.”
Litigation Timeline: Authors Guild v. Google
September, 2005: Copyright infringement suit filed by Authors Guild in U.S. District Court for the Southern District of New York.
October, 2005: Five major publishers, coordinated by the AAP, also file suit against Google.
March, 2011: Judge Denny Chin rejects Amended Settlement Agreement.
September, 2011: Authors Guild files parallel suit against a coalition of Google's library scanning partners, the HathiTrust.
December, 2011: Authors’ Representative Plaintiffs move for Class Certification in Google Case.
May, 2012: Class Certification granted in SDNY.
September, 2012: U.S. Court of Appeals for the Second Circuit stays proceedings, pending Google’s appeal of Class Certification.
July, 2013: Second Circuit vacates Class Certification, remands to district court for consideration of the fair use issue.
November, 2013: Judge Denny Chin grants summary judgment in favor of Google, finding fair use.
June, 2014: Second Circuit unanimously affirms HathiTrust decision.
January, 2015: Authors Guild drops case against HathiTrust.
October, 2015: Second Circuit unanimously affirms judgment in Google case, finding fair use.
December, 2015: AG files petition for writ of certiorari with U.S. Supreme Court.
April, 2016: Supreme Court denies petition for writ of certiorari in Authors Guild v. Google, ending litigation.
Digital Book-Related Developments
Twitter launched in July 2006
GoodReads launched in December 2006
iPhone released in June 2007
EPub format released October 2007
Kindle launched November 2007
iPad released in April 2010
B&N releases Nook e-reader in June 2010
Amazon Kindle Fire tablet released in November 2011
E-book price-fixing lawsuit against Apple and five publishers filed by the DOJ in March 2012