After a delay of more than a year, the long-running Authors Guild vs. Google case is heating up again with opposition to Summary Judgment briefs filed this week in the long-running case.
In its filing, Authors Guild attorneys argue that Google’s fair use analysis fails, and that its library scanning project is not some public service but a commercial attempt to “gain a competitive advantage over other search engines and to generate even greater advertising revenues.” Google counters that its scan plan is protected by fair use, and argues that the program offers public benefits as well as benefits to authors. And, it argues, there is no evidence of any harm to copyright holders.
Cross motions for summary judgment in the epic copyright battle were first filed in July of 2012. Just weeks later, however, Judge Denny Chin granted a stay in the case pending Google’s appeal of his decision to grant the Authors Guild class action status. Google prevailed in its appeal last month, with the Second Circuit reversing Chin’s decision. The case now continues in the name of the Authors Guild and the three named plaintiffs (Betty Miles, Joseph Goulden, and Jim Bouton), but the core copyright claims in the matter are largely unaffected by the standing question.
The original suit, filed in September of 2005, was the first against Google over its scanning program. And after almost eight years of legal wrangling—including three years spent unsuccessfully stumping together for a controversial settlement—the new filings suggest the case is finally inching closer to resolution, whether a summary judgment, a settlement, or perhaps—at long last—a trial.
But while the case had been stayed the legal landscape changed dramatically. In October of last year, the publishers dropped their lawsuit against Google after a bare bones settlement. And just days after the publishers settlement, Judge Harold Baer delivered an emphatic Summary Judgment ruling in the Authors Guild vs. HathiTrust, the AG's parallel Google-related scanning case against a collective of university libraries.
In his opinion, Baer rejected many of the same arguments the Authors Guild makes in its case against Google, writing that he could not imagine a definition of fair use that would compel him to shut down what he called an “invaluable contribution to the progress of science and cultivation of the arts.” That fair use ruling now hangs over the Authors Guild suit against Google.
The Authors Guild has appealed Baer’s ruling.
Transformative?
In its opposition brief filed yesterday, the Authors Guild tries to poke holes in Google’s assertion that its program is "transformative" and does not harm copyright owners. “A single example,” AG attorneys argue, belies that claim: before Google scanned plaintiff author Jim Bouton’s book Ball Four, his publisher had licensed Amazon to display full pages of Ball Four to those searching the retailer’s online bookstore.
“Google’s digitization and display of snippets cannot be viewed as transforming Ball Four by using the work for a new purpose or adding something new, when Mr. Bouton and his publisher had already licensed the book for limited online display,” AG attorneys argue. “The only thing ‘transformative’ about Google’s display of snippets of in-print books is that it transforms online browsers of book retailers to online users of Google’s search engine. Google 'transforms' Amazon customers into Google ad-clickers.”
The Authors Guild goes on to explain that Google’s "snippets" are in fact harmful, because “through its display of snippets, Google lures online browsers of Ball Four away from Amazon, which is optimized for selling books, and draws them to Google’s webpages, which, no doubt, are optimized for encouraging users to stay within Google’s ecosystem and click on the ads that Google sells.”
The brief also reiterates their assertion that Google “distributed” unauthorized copies to university libraries, and has put authors' works in jeopardy.
“Google has put much of the world’s most valuable literary property at risk,” the AG argues. “One need only pick up a daily newspaper to appreciate how serious this security risk is. Stories of break-ins, hacking and theft appear almost daily.”
Fair use, the Guild argues, “cannot condone” such activities.
'Moral' Rights
Google attorneys counter that the Authors Guild suit betrays “a fundamental misapprehension” of fair use. "Copyright owners do not have the legal power to veto uses of their works that are fair,” the Google brief states.
Google attorneys argue that copyright exists “to further learning," and that the "significant extent to which Google Books furthers that purpose is an indispensable part of the fair use analysis.” Given the established benefits of the project, Google attorneys point to what they see as the “key question” of the case: Does the existence of the online index "cost the author anything, by replacing a sale or license of the copyrighted work with a sale of the accused work?”
The answer, they say, is no.
Google attorneys note that the Authors Guild cannot identify “even a single Authors Guild member who has lost a book sale on account of Google Books or is likely to do so in the future.” In fact, the Google scanning project helps authors, by allowing users to locate, read, and purchase works that previously had been “impossible or difficult” to find.
“Plaintiffs thus get both sides of the fair use balance wrong," the brief argues. "They ignore the substantial benefits Google Books delivers to authors and the reading public and fail to show cognizable harm.”
As for the alleged distribution to libraries, Google reiterates that it is the libraries themselves that make the copies of their own books, and only those books that the libraries own in their collections. And, to the alleged security risk, Google attorneys stress that Google employs a range of security measures, as do its partner libraries, and that any risk is strictly hypothetical.
“There has been no security breach resulting in unauthorized access to library books during the ensuing years,” Google attorneys argue, noting that “there is no evidence in the record of any deficiencies in Google’s (or libraries’) security, and abundant evidence of its effectiveness.”
Google attorneys also argue that “there is no traditional market in which authors are paid merely to have their books indexed or for allowing their books to be browsed.” Google does not “and would not” pay for such uses, the brief states, and despite the AG’s claims, “there is no reason to expect that a market for such uses is likely to develop in the future.”
The Authors Guild case “boils down to the assertion, restated or implied many times in many ways, that authors have a moral right, as opposed to an economic right, to control the uses of their works,” the brief concludes. “United States copyright law says otherwise.”
