Authors Guild v. Google: What Was It All About?

Monday, May 16, 2016

On April 18, the U.S. Supreme Court refused to hear arguments in Authors Guild v. Google, Inc., ending the Authors Guild’s attempts to stop the Google Books Project. This copyright case has important implications for writers, but they may not be what you think.

Article I, Section 8 of the United States Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, copyrights are created to benefit the public by giving authors an incentive to write. But since the public—not the author—is the intended beneficiary, the law allows certain “fair uses” that overcome copyright protection when the copyright would actually inhibit new creative uses. That was the issue in Authors Guild v, Google. Was Google’s book project a copyright violation, or was it a fair use?

The case had a very long procedural background, and it’s too complicated for a blog post. But here is a quick summary of the significant facts and arguments when the case reached the 2d Circuit Court of Appeals for the final time.

In 2004, Google started making digital copies of books from hard copies owned by various research libraries. Google kept the original digital copy and gave a duplicate to the library that had provided the book, with a contractual provision prohibiting the libraries from using the copy for any purpose that violated the copyright laws. Google used its digital copies to create an online index to those books, most of which were non-fiction and some of which were out of print.

The Google Books project allows researchers to find relevant books by searching key terms selected by the researcher. The search shows all books that include those terms and gives the number of times the term is used. For example, someone who searched on “World War II” would find millions of books, each listing the number of times or pages that search term appears in the book and one or more very short excerpts (snippets) that include the search terms. Unless the book is in the public domain or the publisher or copyright holder has given permission to provide more, this basic information (title, author, etc.; number of “hits” within the book; and a snippet or two) are all the viewer will get. In most cases, it will be enough to tell the researcher whether the book is worth tracking down. If the book is in print, the search results also give links for purchasing it from unaffiliated retailers. The information does not, however, provide enough of the text to substitute for the book itself.

That’s important. Without going into the intricacies of the fair use analysis, suffice it to say that indexes are a fair use of copyrighted material if they are not a substitute for the original text (or art or other creative matter). This is true whether the index is of the old-fashioned printed type or an online search engine. Nor is it copyright infringement to make a non-public digital copy of the complete work for the limited purpose of creating that index. This principle is well settled in the case law.

I think the result in Authors Guild v. Google is consistent with the U.S. Constitution, the copyright statutes, and prior case law, so I’m not surprised by the result. But I am surprised that the Author’s Guild thought they had a chance of winning it. Or maybe their original strategy was to force a settlement that resulted in some payments to their members. If so, their strategy failed.*

By now, it should be clear that I think the 2d Circuit’s decision is legally correct. But does it help or hurt me as an author?

That’s the subject of next week’s post.


* The parties did reach a settlement agreement in which Google would have paid for uses that included but were more extensive than the ones involved in the final decision. The district court rejected the proposed settlement as unfair to some of the authors who would have been bound by it. At that point, the Authors Guild filed an amended complaint and continued its lawsuit against Google.

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