Next Chapter for the Author's Guild: Supreme Court?

October 19, 2015 – Blog Post

The Second Circuit Court of Appeals issued a decision in The Authors Guild (and several individual plaintiffs) v. Google, Inc., which was a win for Google.

On October16th, the Court of Appeals for the Second Circuit, in unanimous opinion written by Judge Pierre Leval, affirmed the lower court’s dismissal of the case on fair use grounds. Judge Leval, is no stranger to section 107 (the fair use section) of the copyright law, Title 17. As a result of Judge Leval’s 1990 law review article and activities since then, Judge Leval is an acknowledged scholar on fair use.

This case arose from Google scanning more than 20 million books without the permission of the copyright owner. These scans are in Google’s database, which enables members of the public to search the Google Books website to get up to three snippets from any of the books in the database. Certain works are excluded from the database, e.g., dictionaries, cookbooks, books of poems. Members of the public can search words or terms for a book and receive information such as the number of times those words or terms appear. Google will exclude any book altogether from snippet view if the rights holder makes an online request using the appropriate form.

The legal issue is: does this constitute infringing activity or is it fair use? In a 48 page opinion, Judge Leval methodically considers the language of the law and adjudicated cases, of which there have been many. The decision is that Google’s activity is “transformative;” therefore, it is fair use. Perhaps thinking of what might come next, Judge Leval includes citations to fair use decisions of other federal circuits and the U. S. Supreme Court’s 1994 fair use decision in Campbell v. Acuff-Rose Music, Inc. which found 2 Live Crew’s, a rap group, commercial changing of the lyrics “Oh, Pretty Woman”, a transformative fair use.

The Authors Guild website states it will take the case to the U.S. Supreme Court. This could be the next chapter, if the appeal is filed and accepted.