Reporters, observers and lawyers lined up early Wednesday afternoon to guarantee themselves a seat in Courtroom 1703 of the Thurgood Marshall U.S. Courthouse in downtown New York City. The case of the day was the oral argument in the appeal of the Authors Guild’s ongoing copyright infringement case against Google. The Guild is appealing a November 2013 district court ruling that Google’s unauthorized copying of millions of copyrighted books was a fair use of those works.
The three-judge panel of the U.S. Court of Appeals for the Second Circuit spent over an hour and a half hearing lawyers’ arguments while peppering them with questions.
Paul Smith, a recent addition to the Guild’s legal team, argued for the Authors Guild. Smith, who has appeared in the Supreme Court fifteen times and in scores of appellate courts over a span of three decades, will also help the Guild position the case for an appeal to the Supreme Court, if that becomes necessary. He is perhaps best known for successfully arguing the landmark gay rights case Lawrence v. Texas.
The issue before the court today was whether Google’s scanning and snippet display of millions of books from the collections of leading research libraries, without regard to copyright status and without authorization or compensation, was fair use. The lower court had found that it was fair use and that Google therefore owed the authors nothing for the use. Fair use is a defense to an accusation of copyright infringement; it permits a work to be used in ways that otherwise would be considered infringing, in order to enable socially beneficial activities such as commentary, parody, reporting and teaching.
Mr. Smith described how Google’s digitization of books is “quintessentially commercial in nature,” not done from charitable motives, as it implied in its papers. He explained that he would not be taking on the lower court’s decision that Google’s use was “transformative” since the court of appeals had already found a similar use was transformative in the HathiTrust case. In response to Judge Leval’s questions, Mr. Smith discussed security concerns, including the possibility that hackers could gain full access to copyrighted works.
Additionally, Mr. Smith pointed out that the court should not assume that snippets are harmless: many non-fiction books accessible through Google Books are used primarily for research, and a simple Google Books Search could replace the use of the books themselves. After setting out possible remedies and emphasizing that the Authors Guild is not asking for Google Books to be taken down, Mr. Smith stated that a legislative solution—as opposed to a court decision—would be the more effective approach to mass digitization. While it is, of course, not practical for the court to wait for Congress to weigh in, if the court were to rule for Google, Mr. Smith explained, then “the cows would be out the barn door forever” and Congressional action would be too late.
The judges were well-prepared with a number of thoughtful questions. Judge Leval, who wrote the seminal article on “transformative use,” and indeed coined that term, took the lead, while Judges Cabranes and Parker focused on more technical details. As Judge Cabranes quipped, “While Judge Leval goes for the jugular, I go for the capillaries.”
We expect a decision within two to eight months. Whatever the outcome of this case, a Supreme Court petition is in the cards. We believe the Justices will want to hear this case in order to reset the balance in fair use law.