And Of Course: Authors Guild Asks Supreme Court To Overturn Fair Use Ruling On Google Books

from the fighting-technology-every-step-of-the-way dept

Back in October, the 2nd Circuit appeals court issued a really wonderful fair use win on the long-running (and somewhat ridiculous) lawsuit that the Authors Guild had filed against Google Books. The decision -- written by Judge Pierre Leval, who has long been a key player on issues of fair use -- was decisive and clear. It capped a ridiculously long process, in which the Authors Guild lost at every stage, wasting the money of its members. The ruling was quite clear that Google Books was transformative and did not compete with the original works. It also highlighted how it benefited the public. A key part of the ruling:
The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, 7sect; 8, cl. 8) (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.
We noted at the time that it was likely that the Authors Guild would ask the Supreme Court to rehear the case -- and according to the Washington Post, that is exactly what's happening. The filing claims that this is a massive and unprecedented expansion of fair use, and wants the Supreme Court to fix things:
This case represents an unprecedented judicial expansion of the fair-use doctrine that threatens copyright protection in the digital age. The decision below authorizing mass copying, distribution, and display of unaltered content conflicts with this Court’s decisions and the Copyright Act itself. This case also presents important issues on which the circuits are split, highlighting the need for this Court to act.
As we noted in our post about the original ruling, it's not clear that there's really a circuit split here, no matter what the Authors Guild wants to claim. The Authors Guild tries to manufacture a circuit split by arguing that multiple other courts have said the "transformative use" test requires "new creative expression" but it seems to be making that up. Yes, that's one form of transformative use, but not the only one.

The Supreme Court rejects most petitions to hear cases, so it wouldn't surprise me if it turns this one down as well. That would be the best overall result. The 2nd Circuit ruling is clear and concise -- and given the Supreme Court's history on copyright issues, there's a half-decent chance that even if it came to the right overall decision, the justices would muck it up in some way in the process. Either way, if the Supreme Court does take the case, this will be a key one to follow.
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Filed Under: 2nc circuit, book scanning, copyright, fair use, google books, pierre leval, supreme court
Companies: authors guild, google

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  1. icon
    Michael Barclay (profile), 4 Jan 2016 @ 7:07pm

    Two glaring omissions in the cert petition

    There are two glaring and interesting omissions in the cert petition:
    (1) The petition doesn't discuss the fact that the Authors Guild failed to petition for cert. after it lost the related HathiTrust case. There, the Second Circuit held that (a) the libraries' use of the digitized books was a fair use, and (b) the Authors Guild didn't have standing to bring an copyright claim as an association. The Authors Guild should be precluded from rearguing these points any further. This should dispose of the 3rd and 4th questions presented.
    (2) In 1990, Judge Pierre Leval wrote what is widely accepted as the leading article on fair use. The Supreme Court cited the article about 16 times in the Campbell case. The article is highly instructive on the 1st question presented . . . yet the petition doesn't mention or cite it at all. Perhaps that's because Judge Leval wrote the Second Circuit opinion under review here.

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