Supreme Court Seen Unlikely To Grant Authors Guild's Petition for Cert in Google Books Case

The 2nd Circuit’s interpretation of the fair use doctrine “goes far beyond anything contemplated” by existing Supreme Court precedent and “empowers judges to approve any reuse of copyrighted works that those judges deem socially beneficial,” the Authors Guild said in its petition. The 2nd Circuit’s ruling “wholly displaced the statutory fair-use factors” by focusing solely on the transformative use factor, treating the commercial purpose of the Google Books project “as irrelevant in light of the supposedly transformative purpose.” The 2nd Circuit’s analysis that Google Books presented a limited potential for market harm “improperly limited potential, and even existing, markets for licensed distribution of books” despite evidence from the Authors Guild, the group said.

The 2nd Circuit’s interpretation of what constitutes a transformative use under the fair use doctrine directly conflicts with rulings in the 3rd, 6th and 11th circuits that strictly adhere to the existing precedent in Campbell v. Acuff-Rose Music that transformative uses involve “new creative expression or meaning to the original,” the Authors Guild said. The 2nd Circuit’s “sharply conflicting” interpretation of the transformative use test relies on similar rulings in the 4th and 9th circuits that “found a transformative purpose in the absence of any creation of new expression,” the Authors Guild said. “If fair use now covers infringements undertaken for a useful but non-expressive purpose, then the more massive and widespread the infringement, the more likely it is to be found useful and therefore fair.”

The Supreme Court is most likely to deny the Authors Guild petition in part because it may take notice of Judge Pierre Leval’s authorship of the 2nd Circuit’s ruling on Google Books, said James Grimmelmann, a University of Maryland law professor specializing in IP and technology. The 2nd Circuit opinion was already “so thorough and careful,” and Leval’s status as a top fair use legal authority could lead the Supreme Court to view the decision with additional deference, Grimmelmann said. The issues in the Google Books case also aren’t as “interesting” as those seen in recent IP cases the Supreme Court has considered like ABC v. Aereo, Grimmelmann said. The Google Books case has lost much of its cachet as a controversial legal matter, and “once you take away that excitement, there’s just not enough division on the fair use issue for it to be important enough” to merit a Supreme Court review, he said.

The Supreme Court has been “willing to take a number of IP cases” in recent years, and the Google Books case has similar merits to Aereo because both cases pose “substantial questions about how the Supreme Court’s own precedents should be interpreted,” said Robins, Kaplan attorney David Leichtman, who wrote an amicus brief supporting the Authors Guild at the 2nd Circuit on behalf of the American Society of Journalists and Authors. “Based on the fact that [the Supreme Court] did take the Aereo case and reversed it, I think they’ve shown a willingness to consider what the 2nd Circuit is doing with copyright law and reverse it.” The Supreme Court has previously been deferential to the 2nd Circuit on copyright rulings, but the circuit “has gone off the rails [in the Google Books case], so I’m optimistic the court will take the case,” Leichtman said.

Lawyers who supported Google at the 2nd Circuit are confident the Supreme Court will pass on reviewing the circuit’s Google Books ruling. The Authors Guild has “tried to manufacture a circuit split where there really isn’t one,” said Library Copyright Alliance counsel Jonathan Band. The rulings in the 3rd, 6th and 11th circuits that the Authors Guild cites to support a circuit split involved course reserves in which full versions of copyrighted works were being digitized, while the Google Books project involves access to only snippets of a book, said Public Knowledge Policy Counsel Raza Panjwani. “I don’t think there’s a huge controversy here that requires [Supreme Court] intervention,” he said.

Supreme Court action on the Authors Guild petition will depend in part on whether the U.S. solicitor general files a brief on the Google Books case, plus arguments made in any amicus briefs with several parties supporting the Authors Guild’s position, legal observers said. Several parties that supported the Authors Guild at the 2nd Circuit are likely to also file briefs with the Supreme Court, though others may not in an attempt to prevent the 2nd Circuit’s interpretation of the fair use doctrine from becoming precedential, Band said. “From a rightsholder’s perspective, what they viewed as a bad precedent in the HathiTrust case got applied in the 2nd Circuit’s Google Books decision,” he said. “If I was a rightsholder, I wouldn’t want the Supreme Court to take the case because there’s a good chance the court could then affirm” the 2nd Circuit’s ruling. Amicus briefs supporting the Authors Guild petition are due at the beginning of February, and Google’s brief in March.

Leichtman told us he expects to file a brief on behalf of the American Society of Journalists and Authors that will focus on the 2nd Circuit’s interpretation of the fair use statutory factor covering the amount of copyrighted work used in the Google Books snippets. The 2nd Circuit “went into a quantitative analysis where they determined on their own that a single user could only get 16 percent of certain books,” while the Supreme Court has favored the “qualitative amount” of a work in determining that fair use factor, Leichtman said. “Particularly in journal articles and other shorter works, even 16 percent may be the heart of the work,” he said.