Imagine a company that pledged to scan every book worldwide, and then make the material available freely on the Internet. A decade ago, you’d be forgiven for thinking the scheme sounded like an open-and-shut case of copyright infringement.
The Authors Guild certainly thought so. In 2005, on behalf of authors of millions of copyrighted books, the Guild took on search giant Google Inc. over its new Google Books full-text scanning and search service, claiming that Google owed authors $750 per scanned book.
Now, nearly a decade later, the plaintiffs are poised to walk away with nothing. On Thursday Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit dismissed the suit on summary judgment. Chin, who’s continued to preside over the case since ascending to the Second Circuit from Manhattan federal district court, ruled that Google Books is “transformative” and concluded that the service didn’t violate copyright laws under the fair use doctrine.
In his 30-page decision, Chin generally echoed arguments Google’s lawyers have made from the beginning. “In my view, Google Books provides significant public benefits,” he wrote, citing points made by the American Library Association, groups of academic authors, and Google’s own experts in various briefs.
Google’s longtime counsel, Durie Tangri’s Daralyn Durie, told the Litigation Daily that the eight-year-old case “has seen the birth of 10 babies and the founding of two law firms” among both sides’ legal teams. She and the lead plaintiffs lawyer, Michael Boni of Boni & Zack, both left larger firms during the litigation to start their own boutiques.
The decision is a reversal of fortune for the Guild. The authors had struck a $125 million settlement in 2009, but Chin nixed the deal in 2011 on grounds that it would have “rewarded [Google] for engaging in wholesale copying of copyrighted works without permission.”
Forging ahead, the Guild successfully beat back Google’s motion to dismiss and then persuaded Chin to certify an authors’ class in June 2012.
Three months later, Google’s appellate team, led by Wilmer Cutler Pickering Hale and Dorr’s Seth Waxman, convinced the Second Circuit to take another look. In oral arguments before a three-judge panel in May, Waxman argued that class treatment wasn’t suitable, since many presumed author class members may have actually received economic benefits when out-of-print books are revived or forgotten authors’ work resurrected. In July, the panel decertified the class, sending the case back to Chin with instructions to review the merits of Google’s fair use defense more thoroughly in his summary judgment decision.
Judge Chin had appeared sympathetic to the plaintiffs during much of the litigation. But in September, during oral arguments on summary judgment motions, Chin rattled off examples of how Google’s project had helped people, including his own law clerks, to find information, rhetorically asking a Guild lawyer, Frankfurt Kurnit Klein & Selz partner Edward Rosenthal, “aren’t these transformative uses, and don’t they benefit society?”
Chin noted in Thursday’s decision that Google never denied scanning 20 million books. But while Google might profit from increased visitor traffic, Chin writes, Google Books doesn’t sell the material online, and the service even points searchers in the direction of booksellers like Amazon.com. “Google Books does not supersede or supplant books because it is not a tool to be used to read books,” Chin wrote. “Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays.” The searchable database has also opened up new areas of linguistic research, the judge added.
The decision comes 13 months after the Guild saw its parallel case against research libraries dismissed, also on fair use grounds. Google, meanwhile, is facing still another copyright infringement class action related to Google Books, this one on behalf of photographers and graphic artists whose work was scanned by Google Books. Mark Berube of New York’s Mishcon de Reya is spearheading that lawsuit, with Durie on defense. Chin is also handling the case, which is scheduled for summary judgment hearings next summer.
Authors Guild counsel Boni referred our request for comment to his client, which said it plans to appeal Thursday’s ruling. “We disagree with and are disappointed by the court’s decision today,” said Paul Aiken, Authors Guild Executive Director, in a prepared statement. “This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”
Julie Triedman is a senior writer with The Am Law Daily, a Recorder affiliate.
