When The Authors Guild lost the 8 year old Google Books lawsuit last November, it was obvious that The AG would be filing an appeal of Judge Denny Chin’s ruling which expanded the fair use doctrine of copyright law.
Google Books is the colloquial term for a decade old book scanning project where Google sought to scan both in and out of copyright books with the goal of serving up snippets in their search results. The Authors Guild filed suit in 2005, and after multiple rounds of appeals, motions, and a negotiated settlement which was rejected by Judge Chin, The Authors Guild lost the lawsuit in late 2013.
The Authors Guild filed its appeal in the Google Books case today, and it argues pretty much what you would expect. They objected to every part of the ruling, arguing that Judge Chin was wrong when he:
- endorsed each and every aspect of Google’s Library Project by applying an unprecedented, expansive and erroneous interpretation of the fair use doctrine.
- essentially ignored the inherently commercial nature of the Library Project and wrongly determined that the entire program is “transformative.”
- failed to separately evaluate whether each of Google’s uses, including its reproduction, archival storage and distribution of the books in full, passes the transformative use test.
- further disregarded that, in order for Google’s search function to operate, Google did not need to distribute the e-books to its Library Partners, display “snippets” of search results to its users or store multiple copies of the e-books on online servers.
- brushed aside the actual and potential harm to the literary market inflicted by the Library Project.
- failed to heed one of the Supreme Court’s key mandates in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), by failing to acknowledge that its ruling will open the door for others to copy, display and distribute digital versions of copyrighted works for their own commercial advantages and subjecting those works to further security risks.
I won’t presume to critithe merits of the appeal, mostly because Judge Chin’s ruling was a novel interpretation of fair use, and as such it is entirely possible that the appeals court might decide to over turn his ruling.
I would note, though, that this appeal is but one string in The Authors Guild’s bow.
The general counsel of The Authors Guild recently testified at a congressional hearing on this topic, requesting that Congress pass legislation to create an ASCAP-like organization to administer the digital rights which Google can now use under the fair use doctrine. Early signs suggest that Congress won’t be drafting any changes to copyright law at this time, but that could change.
P.S. If you have the time you might want to read the press release and the sections of the appeal that mention Amazon. Anyone familiar with The Authors Guild and its hostility towards Amazon will likely be entertained by the claims that Amazon was harmed by the Google Books decision.