Supreme Court Will Not Hear Authors Guild’s Appeal

Authors GuildThe Supreme Court on Monday rejected a challenge from The Authors Guild to Google’s online book library. Previously, lower courts have said that Google can offer small portions of books online without violating copyright laws.

This ends the Guild’s decade-long battle, which started in 2005. Here is a copy of the litigation’s timeline, courtesy of the Guild.

The Guild’s full statement is below:

SUPREME COURT DECLINES TO REVIEW FAIR USE FINDING IN DECADE-LONG BOOK COPYING CASE AGAINST GOOGLE

NEW YORK, NY, April 18, 2016 — The Authors Guild expressed its disappointment with today’s
U.S. Supreme Court order denying review of the Second Circuit Court of Appeals’ decision in
Authors Guild v. Google, a copyright infringement case originally filed in 2005. The Supreme Court’s
decision not to hear the case leaves standing the Second Circuit’s unprecedented expansion of the
fair use doctrine—holding that Google’s copying and providing access to some 4 million
copyrighted books for profit-making purposes was a fair use. With only seven justices voting
whether or not to grant review (Justice Kagan recused herself), the petition faced an uphill battle to
gain the four votes necessary for a grant of review.

“Today authors suffered a colossal loss,” said Authors Guild president Roxana Robinson. “We filed
the class action lawsuit against Google in September 2005 because, as we stated then, ‘Google’s
taking was a plain and brazen violation of copyright law.’ We believed then and we believe now that
authors should be compensated when their work is copied for commercial purposes.”

In its October 2015 decision, the Second Circuit expanded copyright law’s fair use defense to allow
Google’s unauthorized copying and scanning of millions of books to enrich its natural language
search and translation services, as well as to create its Google Books service. Google Books, a
service created from the book scanning project, allows users to search the texts and see excerpts
from the books. After a decade of litigation, the Second Circuit found that Google’s use of the
books without compensation was “fair,” because the search engine’s “primary intended beneficiary
is the public.”

“Blinded by the public benefit arguments, the Second Circuit’s ruling tells us that Google, not
authors, deserves to profit from the digitization of their books,” said Mary Rasenberger, executive
director of the Authors Guild. “The Second Circuit misunderstood the importance of emerging
online markets for books and book excerpts. It failed to comprehend the very real potential harm to
authors resulting from its decision.”

“The price of this short-term public benefit may well be the future vitality of American culture,”
continued Rasenberger. “Authors are already among the most poorly paid workers in America; if
tomorrow’s authors cannot make a living from their work, only the independently wealthy or the
subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will
be impoverished.”

Robinson added, “The denial of review is further proof that we’re witnessing a vast redistribution of
wealth from the creative sector to the tech sector, not only with books, but across the spectrum of
the arts.”

The underlying issue—expansion of fair use in the digital age—remains in need of resolution, the
Guild maintains. “We trust that the Supreme Court will soon hear a similar fair use case and support
the principle that authors should be compensated for digital uses of their work,” said Robinson.

Fair use law has undergone an unprecedented expansion in recent years, tipping the scales in favor
of technology owners over copyright holders. Rasenberger added, “Copyright law is intended to
encourage and protect creative works of authorship, yet this new court-made doctrine favors new
technologies over copyright’s incentives to create new works of authorship. The Supreme Court
needs to step in and clarify that fair use is part of copyright law’s “engine of free expression”—that
it is intended to promote new authorship, not new technologies for accessing existing content.”

Following the Supreme Court’s order, the Guild vowed to remain vigilant to ensure that the Second
Circuit’s ruling is not taken as carte blanche for unfettered digitization of books. “The Second
Circuit decision took pains to highlight that fair use was found based on the strict display restrictions
and security measures currently employed by Google,” said Authors Guild general counsel Jan
Constantine. “We’ll continue to monitor Google and its library partners to ensure these standards
are met, as we will take appropriate action to ensure that fair use isn’t abused.”

The Guild announced that it is actively working with other organizations to create market-based
solutions for collective licensing of books from authors. Collective licensing would eliminate
unnecessary transaction costs for mass copying-and-display projects like Google Books, for
example, and would also allow full e-books, not just excerpts, to be made available for reading.

“The Guild’s commitment to this case over these last ten years has ensured that creators’ rights have
remained at the heart of the conversation about the role of content in the digital age,” added
Constantine. “The fact that Congress held hearings on the issue of mass digitization, and that the
Copyright Office is actively studying a potential solution, is a direct result of the Authors Guild’s
persistence.”

Robinson expressed gratitude for the support the Guild has received. “The Authors Guild thanks all
of its many, many supporters throughout this case, including those who made our Supreme Court
petition possible by helping to fund it. We will continue to fight with you to make sure we protect
copyright law and the creative arts in America and throughout the world.”

For more information, see: https://www.authorsguild.org/where-we-stand/authors-guild-v-google.

ABOUT THE AUTHORS GUILD

The Authors Guild has served as the collective voice of American authors since its beginnings in
1912. Its over 9,000 members include novelists, historians, journalists, and poets—traditionally and
independently published—as well as literary agents and representatives of writers’ estates. The Guild is dedicated to creating a community for authors while advocating for them on issues of copyright, fair contracts, free speech, and tax fairness. Please visit www.authorsguild.org.


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