The Authors Guild has asked a US appeals court to consider reviewing a ruling from last year in which the Google Books initiative was cleared of copyright infringement.
In November, Judge Denny Chin found that the Google Books project, under which around 20 million snippets of copyrighted works have been published, is protected by fair use.
Chin said Google’s use of the copyrighted works is “highly transformative” and that the project provides “significant public benefits” while respecting the rights of the authors and copyright holders.
In response, lawyers acting for the Guild filed a notice of appeal, the first step in an appeal process, with the US Court of Appeals for the Second Circuit on December 23.
After Chin’s ruling the Authors Guild’s executive director Paul Aiken said the association would appeal, as the case presents a “fundamental challenge” to copyright that merits review by a higher court.
“Google made unauthorised digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitisation and exploitation far exceeds the bounds of fair use defence,” he said.
When contacted by WIPR, a Guild spokesman confirmed that a brief on the notice of appeal is due in the spring, but that there is no further comment at this time.
Google said it doesn’t comment on continuing legal proceedings, but after November’s ruling the company said that “as we have long said, Google Books is in compliance with copyright law and acts like a card catalogue for the digital age”.
If the court agrees to hear the case, the Authors Guild is advised to focus on the most important errors that it thinks Judge Chin made, said Hillel Parness, partner at Robins, Kaplan, Miller & Ciresi LLP in New York.
In this case, he said, two of the four (non-exclusive) fair use factors are likely to be prominent. One looks at the purpose and character of the use, including whether such use is of commercial nature, while the other covers the effect of the use on the potential market for, or value of, the copyrighted work.
There will be a “fair amount” of discussion on this latter point, Parness said. “Judge Chin said he can’t imagine how it [Google’s use] does not help authors, but there are plenty of cases that say that is not the correct analysis, even if you think you are helping the authors.”
While it is “far too early” to say whether an appeal would succeed, Parness said, the Second Circuit has dealt with fair use arguments in recent cases. In April last year, in Cariou v Prince, the court ruled that Richard Prince’s use of Patrick Cariou’s photographs in 25 of his 30 paintings was fair use.
After the case, said Parness, “there was a lot of disappointment in the copyright owners’ corner”.
“There was disappointment that the modifications qualified as fair use and that the Second Circuit still hasn’t given sufficient guidance on fair use.”
Frankfurt Kurnit Klein & Selz PC is representing the Authors Guild against Google.
authors guild, google books, denny chin, fair use