Questions and Answers
Throughout the ten-plus years of Authors Guild v. Google—from the filing of the case on September 20, 2005 to the Supreme Court’s denial of review on April 18, 2016—many authors and observers raised questions about why we brought the case and why we fought it for so long. Here we provide some answers.
Authors Guild v. Google: An Overview
On April 18, 2016, the Supreme Court issued an order declining to review a decision by the United States Court of Appeals for the Second Circuit in our landmark copyright infringement lawsuit Authors Guild v. Google. The Supreme Court’s decision not to hear the case leaves in place the Second Circuit’s unprecedented expansion of the fair use doctrine—holding that Google’s copying and providing access to some 4 million copyrighted books for profit-making purposes was a fair use.
While we are displeased with the outcome, our efforts were not in vain. Through this litigation we won strict limitations on display uses of copyrighted books, and this case blazed the trail for a real, market-based solution to mass digitization of books. Moreover, if we hadn’t challenged Google’s uses, other entities would have digitized books and used larger portions of them without the same security measures and limitations on secondary uses. The Guild will remain vigilant on copyright infringement and take action against those who test the Second Circuit decision’s limits.
The underlying legal issue in this case—the expansion of fair use—remains in need of resolution. We believe the Supreme Court will soon address this issue and reset the balance in fair use law, and when it does—and until it does—the Authors Guild will be there to ensure that copyright protects individual authors and enables them to earn a fair return for their investments in their books, which are essential to the free flow of ideas in our democracy.
On December 14, 2004, Google stunned the library, literary, technology, and copyright worlds, announcing it would start scanning millions of books from the collections of leading research libraries to create a comprehensive database of books that would be searchable online. At first, most of the libraries, including the New York Public Library and Harvard University, limited their cooperation to books in the public domain. But the University of Michigan and then some other libraries agreed also to turn over copyrighted books to the program, which was then called Google Print.
Google’s goal was to amass an unrivaled digital library, using these books to draw users to its website, strengthen its dominance of the search-engine market, and increase its advertising. The libraries, in turn, wanted to digitize their collections, which they legally would not have been able to do themselves, other than in certain circumscribed circumstances. Libraries buy books, preserve them, and lend them to readers, but when the books are in copyright, they may not make copies unless an exception to copyright applies. Nor may a private company, like Google. As the nation’s largest society of published authors and the leading writers’ advocate for fair compensation and effective copyright protection, the Authors Guild felt compelled to act.
So in September 2005, the Authors Guild and a group of individual writers sued Google for copyright infringement. The following month, the Association of American Publishers (AAP) launched a lawsuit of its own.
Google has now scanned some 20 million books, and it displays what it calls “snippets”—short passages—from 4 million that are still in copyright. It has given digital copies to libraries as well, for their own use, in payment for their cooperation.
The Proposed Settlement Agreement
Google argued that its book-search program (now called Google Books) offers great public benefits and therefore the copying should be protected under the legal doctrine of “fair use.” We do not believe that private companies should be able to make full digital copies of copyrighted books en masse for commercial purposes under the fair use doctrine—that is, without compensating the rightsholders. So the authors, publishers, and Google sat down to reach a compromise. A proper solution, we believed, would allow readers to benefit while also making sure that authors and publishers got paid for Google’s use of their work.
After 30 months of talks, we reached an agreement in October 2008: Google would pay out $125 million. Some would go to the owners of the books that were scanned without permission; the rest would fund the Book Rights Registry, an organization that would track down and distribute fees to authors. Google would be able to display out-of-print books to users and charge licensing fees for copyrighted works. Also, the settlement required Google to provide portals in every public library and more than 4,000 colleges and universities in the U.S., allowing widespread access.
The settlement agreement, we thought, was a win for everyone. Authors and publishers would get paid. Readers and researchers in even the remotest rural town would have access to books in the country’s great research libraries. And Google could continue its scanning project as long as it stuck to the security standards it promised to implement.
But to become effective, the settlement agreement needed court approval, and many people raised objections. Some opposed the settlement because they thought Google’s copying should be protected; others, including the Justice Department, because they feared that Google would gain a monopoly over digitized books. In March 2011, the court rejected it. Judge Denny Chin accepted the latter argument, agreeing that “the creation of a universal digital library would benefit many” but that it would also grant Google a “de facto monopoly.” An arrangement between private parties that would affect the status of so many books, he observed, would be more properly made by Congress.
The District Court Ruling
With a settlement apparently out of the picture, the parties set about working on their cases. Google continues to argue that its copying is “fair use” because it serves a useful public purpose, and also argues that it does not harm the market for the books. We argued that, because Google is using authors’ copyrighted works for commercial benefit, and because Google Books will indeed harm the market for books, Google ought to have to pay for its use of those works. Google Books can create a very real negative economic impact on the books it has digitized for two principal reasons. Rather than drive researchers to buy books, readers for many books can find all they need on Google Books. Further, if Google’s doing so is fair use, then it sets a precedent allowing anyone to digitize books for similar purposes, which inevitably will lead to widespread, free, and unrestricted availability of books online.
Judge Chin was persuaded by the argument that Google Books provides great public utility, and in November 2013 he ruled in favor of Google. He declared the program to be fair use because, he found, Google’s use was “transformative”—“words in books are being used in a way they have not been used before.” He added, “Even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes.” Judge Chin also found that rightsholders are not harmed by Google Books, but he failed to look at the long-term harm from widespread, unrestricted similar uses by others, as instructed by the Supreme Court.
The Second Circuit Ruling
We appealed the District Court ruling to the United States Court of Appeals for the Second Circuit, and argued the case before that court on December 3, 2014. During that argument we made it clear that we weren’t trying to shut down Google Books, rather, we were seeking some damages for past infringements, and an order that Google Books operate on a licensing basis going forward. We agree that Google Books is a good thing, but one for which authors should be compensated, like other search databases such as J-Stor, Westlaw, and Lexis/Nexis.
The Second Circuit, however, like the District court below it, was blinded by Google’s “public benefit” arguments, and a unanimous three-judge panel found fair use. It’s unfortunate that a court as well-respected as the Second Circuit failed to reverse the District Court’s faulty interpretation of the fair use doctrine. The Second Circuit, in our opinion, misunderstood the importance of emerging online markets for books and book excerpts. And it failed to comprehend the very real potential harm to authors resulting from its decision. America owes its thriving literary culture to copyright protection, and the diminishment of that protection has a damaging effect on authors’ potential income.
Petition for Supreme Court Review
On December 31, 2015, the Authors Guild filed a petition with the Supreme Court of the United States requesting that it review the Second Circuit’s decision. The Court hasn’t heard a fair use case since 1994, and in the past 20-plus years fair use law—not to mention the way copyrighted works are distributed—has transformed greatly. In asking the high Court to review the case, the Guild pointed out splits in several areas of fair use law, and other areas in need of clarification.
Though the Court declined to review Authors Guild v. Google, we trust that the Supreme Court will soon address the underlying legal issue in this case—the expansion of the fair use doctrine in the digital age—and reset the balance in fair use law. When it does—and until it does—the Authors Guild will be there to ensure that copyright protects individual authors and enables them to earn a fair return for their investments in their books, which are essential to the free flow of ideas in our democracy.
The Authors Guild remains committed to the notion that the digital revolution cannot come at the cost of authors’ rights to preserve writing as a livelihood. Copyright protection is one of the main reasons this country has built such thriving cultural industries over the course of its existence; we need to ensure that the next generation of writers and other creators have the same opportunities as those who came before them.