Following its most recent appeals court loss in October, the Authors Guild has asked the Supreme Court to review the long-running Google Books case in a filing made on December 31.

Calling the Second Circuit’s unanimous decision in the long-running fair use battle “flawed,” Mary Rasenberger, executive director of the Authors Guild, said that the case represents an important opportunity for the Supreme Court to clarify fair use for the digital age. The Supreme Court, she noted, has not heard a fair use case in over 20 years.

“A finding of fair use for an infringement as big as Google Books threatens to undermine the entire framework [of copyright],” Rasenberger said, in a statement, "and should not be allowed to stand without Supreme Court consideration.”

The guild brief was principally authored by Paul Smith, who ably (although, unsuccessfully) argued the case before the Second Circuit in December, 2014. A veteran of numerous Supreme Court arguments, Smith contends that the Second Circuit “misinterpreted and misapplied the transformative use doctrine,” and completely ignored the impact its ruling could have on “nascent markets for digital uses.”

Specifically, the guild raises four questions for the Supreme Court:

  • Whether “verbatim copying of works for a different, non-expressive purpose” can be transformative.
  • Whether the Second Circuit’s approach to fair use improperly makes “transformative purpose” the decisive factor, mooting the statutory four-factor test.
  • Whether the Second Circuit erred in concluding that a commercial business may evade liability for verbatim copying by arguing that the recipients of those copies will use them for lawful and beneficial purposes
  • Whether a membership association of authors may assert copyright infringement claims on behalf of its members

Calling the Second Circuit decision "an unprecedented judicial expansion of the fair use doctrine that threatens copyright protection in the digital age," guild attorneys argue that the Second Circuit decision essentially usurps Congress’s role in setting policy by "empowering judges to approve any reuse of copyrighted works that those judges deem socially beneficial."

In rejecting the Authors Guild’s appeal of Judge Denny Chin's 2013 ruling in favor of Google, Judge Pierre Leval, writing for the Second Circuit, said that Google’s effort to scan and index out-of-print library books was a fair use.

"Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them," Leval wrote.

The guild's Supreme Court bid is the latest and likely the last twist in the association’s decade-long legal battle against Google over its program to digitize out-of-print library books. The suit was first filed in September of 2005, but was shelved for three years while the parties stumped for a controversial, ultimately rejected settlement.

In 2011, the guild filed a parallel suit against Google’s library scanning partners, Authors Guild vs. HathiTrust. But in October 2012, Judge Harold Baer delivered a summary judgment ruling in favor of the HathiTrust. A year later, Chin echoed Baer's findings in his ruling for Google. In June, 2014, the Second Circuit also unanimously affirmed Baer’s HathiTrust verdict. Rather than appeal that case to the Supreme Court, the guild dropped the case in January, 2015.