Appeal in ‘Authors Guild v. Google’ Not Likely to Gain Traction, Say Fair Use Backers
The 2nd U.S. Circuit Court of Appeals will likely uphold last year’s decision by Judge Denny Chin to allow Google’s public indexing of copyrighted books under the fair-use doctrine in Authors Guild v. Google, said fair-use backers in interviews. The Authors Guild filed an unsealed, heavily redacted appeal with the 2nd Circuit Friday to have Chin’s ruling overturned, according to court documents (http://bit.ly/Q7qIpZ). Chin kept oversight of the cases in the U.S. District Court in New York after his 2010 appointment to the 2nd U.S. Circuit Court of Appeals. Some authors, including Malcolm Gladwell, filed a joint amicus brief Monday on behalf of the Authors Guild, according to court documents. The Authors Guild wants the case remanded to the U.S. District Court in New York, said the appeal. “We had to appeal because the ruling is a disaster for authors” and the publishing industry, said James Gleick, an author and member of the Authors Guild board, in an interview.
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The case is the “story” of how Google, “a commercial enterprise with virtually unlimited resources, enhanced its search engine, drove potential book purchasers away from online book retailers, increased its advertising revenues and stifled competition by digitizing, distributing and monetizing millions of copyright-protected books without permission or payment,” said the Authors Guild in the appeal.
"The Authors Guild is, understandably, appealing Judge Chin’s ruling, and perhaps the Second Circuit will reverse Judge Chin on the fair use decision,” said Derek Bambauer, a University of Arizona law professor specializing in Internet law and intellectual property, by email. “But Judge Chin is hardly a copyright minimalist” and “it’s likely the Second Circuit will affirm his decision,” he said.
Chin’s fair-use ruling was a “good one,” said Daniel Nazer, staff attorney at the Electronic Frontier Foundation, which filed an amicus brief (http://bit.ly/1hCwZED) on behalf of Google in 2012. The “availability” of titles on Google Books “really helps people” buy books, he said. Fair use doesn’t provide “total control” of copyrighted works, which is what the Authors Guild wants, he said. Nazer said he’s “optimistic” that Chin’s ruling would be affirmed and that the guild would have a “tough” time getting the Supreme Court to hear its case. “It’s a really interesting case because the technology is so new” and courts are having to “think about how fair use applies in the Internet age,” he said. “In this case, they did a very good job,” he said.
Arguments on “appeal are the same they made in the district court, and equally unconvincing,” said Jonathan Band, counsel for the Library Copyright Alliance, a coalition of library associations. The Authors Guild “completely” ignores “the enormous public benefit of Google Books Search, and the harm they allege is entirely speculative,” he said. “Particularly annoying to libraries is that the Authors Guild perseverates in asserting that Section 108 [of the Copyright Act] acts as a limitation on what libraries can do,” he said. That section limits the exclusive rights of copyright holders in the case of the reproduction of copyrighted material by libraries and archives. “This is a distortion of the plain language of the statute as well as its legislative history.”
Chin’s decision was a “clear, strong fair-use analysis,” said Andrew McDiarmid, Center for Democracy and Technology (CDT) senior policy analyst. CDT hopes Chin’s ruling “will be upheld on appeal, so that copyright law will not needlessly interfere with technology’s potential to give the public powerful tools” to access information, he said.
"It seems inconceivable” that the case “could be allowed to stand,” said the Authors Guild’s Gleick. Google is practicing “brazen daylight theft” on a massive scale, he said. “You can’t digitize complete books that are under copyright for your own commercial purposes without compensating the copyright holder,” he said. “Google seems to have blinded this particular court to the reality of the situation.”