The question of the legality of Google Books, which has been in dispute for over a decade, may make its first appearance in the Supreme Court after plaintiffs petitioned for cert in December.
The Authors Guild, a national professional and advocacy organization for writers, challenges Google’s book-scanning project. With Google Books, the internet conglomerate scanned millions of books, making “snippets” available for researchers to search through volumes. The Authors Guild argues that Google Books violates fair use.
In October, the Second Circuit ruled in favor of Google, finding that the Google Books operation constitutes a transformative fair use, and was therefore protected. While the Google Books program made a digital copy of each entire book, “it does not reveal that digital copy to the public. The copy is made to enable the search functions to reveal limited, important information about the books.” Authors Guild Inc. V. Google Inc., 804 F.3d 202, 221-222 (2d Cir. 2015).
In their cert petition, the Authors Guild argues that, despite the Second Circuit’s ruling, circuits are split regarding how transformative use doctrine should be applied. Specifically, the Authors Guild argues, among other things, that the Second Circuit’s decision revises transformative fair use doctrine “beyond anything contemplated by [the Supreme Court’s] precedent, and conflicts directly with decisions of the Third, Sixth, and Eleventh Circuits.” The Authors Guild Inc. v. Google Inc., 804 F.3d 202 (2nd Cir. 2015), petition for cert. filed, 2015 WL 9596031 (U.S. Dec. 31, 2015) (No. 15-849), 14.
Transformative use doctrine arose following a 1994 Supreme Court ruling, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, which found that use of the Roy Orbison song “Oh, Pretty Woman” by musical act 2 Live Crew constituted parody and therefore “transformative use.” Transformative use is meant to be one consideration factoring into the fair use test under the Copyright Act of 1976, 17 U.S.C. §107. The Authors Guild, in their petition, claims that the Second Circuit “wholly displaced the statutory fair-use factors” in favor of the transformative use test.
A granting of cert by the Supreme Court in The Authors Guild Inc. v. Google, Inc. would be historic. The nation’s high court has not decided on a fair use case since Campbell in 1994. A decision could also bring an end to litigious proceedings that started in 2005, one year after Google Books launched.
Hughes, Patrick, Google’s book-scanning project fair-use question thrown to high court, WESTLAW Intellectual Property Daily Briefing 2016 WL 233209 (January 21, 2016).
Mazumdar, Anandashankar, Petition Asks Supreme Court to Review Google Books Case, Bloomberg BNA (Jan. 4, 2016, 10:40 AM), http://www.bna.com/petition-asks-supreme-n57982065844/.
The Authors Guild Inc. v. Google Inc., 804 F.3d 202 (2nd Cir. 2015), petition for cert. filed, 2015 WL 9596031 (U.S. Dec. 31, 2015) (No. 15-849), 14.
The Authors Guild Inc. V. Google Inc., 804 F.3d 202, 221-222 (2d Cir. 2015).
Who We Are, The Authors Guild (Jan. 22, 2016, 11:00 AM), https://www.authorsguild.org/who-we-are/.