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
    Whatever (profile), 5 Jan 2016 @ 5:18am

    Death and Values

    One of the reasons copyright doesn't end at the moment of the authors death is because that would make it a lot harder to place an economic value on a book. Imagine if you will someone who is dying of an incurable disease, who writes a masterpiece. What is it's economic value? Since the resell time would be incredibly short (perhaps days) or might even occur after the death, then the work would be economically worth very little, as there is little chance that anyone would want invest in something which could be public domain in the morning.

    Copyright is often not just licensed, but sold outright. When do you consider a company dead? What happens if the company never ceases to exist? Would it be granted a longer copyright (it's life ) than someone else?

    Death is arbitrary. A celebrated author today could be tomorrow's hood ornament for a city bus. Does her heirs deserve a lesser value from her efforts because she didn't look both ways before crossing the street?

    As for the story itself, the real question here for me is the simple: "is converting something from printed matter to digital format transformative in nature?". Does the court ruling essentially mean that each author would have to file a copyright case individually to find out where they really stand? Does the court system really want to retry essentially the same case for every copyright literary work? There is a point where SCOTUS maybe could add some light in the situation, because if moving something to digital is transformative, then it's pretty much free game for any work out there.

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