Some commentators think the U.S. Court of Appeals for the Second Circuit has already signaled its approval of Google Inc.’s effort to digitize the world’s books, albeit indirectly. After seven years of crusading against Google’s book project, the Authors Guild has tapped a new legal team and asked the court for a straight answer.
In a 67-page brief filed on Friday, the Authors Guild asked the Second Circuit to reverse a November 2013 ruling that the books project qualifies as fair use under U.S. copyright law. The trade group argues that the lower court ruling largely ignored the commercial nature of Google’s project and “cleared the way for other, less responsible parties to engage in their own mass digitization projects.”
A trio of firms—Boni & Zack; Milberg; and Kohn Swift & Graf—represented the Authors Guild at the trial court level. For the appeal, the Guild brought on attorneys at Frankfurt Kurnit Klein & Selz, as well as U.S. Supreme Court advocate Paul Smith of Jenner & Block, who is known for representing record companies and other copyright holders.
In 2004, Google teamed up with research libraries to create a searchable digital database of millions of books. The Authors Guild and the American Association of Publishers separately sued Google on behalf of their members in 2005, alleging massive copyright infringement. The cases were assigned to Judge Denny Chin, who then sat in U.S. district court in Manhattan before ascending to the Second Circuit in 2010. (He’s held on to the case since his promotion.)
Google’s lead counsel from the start has been Daralyn Durie of Durie Tangri, who argues that the books project warrants fair use protection because it provides a great benefit to researchers, and because Google only uses snippets of the books it scans.
The plaintiffs initially reached a $125 million settlement with Google in 2011. Chin rejected the agreement, holding that it was entirely too favorable to Google. The deal would “give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission,” Chin wrote. In the wake of the ruling, the American Association of Publishers reached an out-of-court settlement with Google, while the Authors Guild battles on.
In May 2012, Chin certified the Authors Guild’s case as a class action. The Second Circuit vacated that ruling in July 2013, instructing Chin that he should have addressed Google’s fair use defense before deciding whether to certify the proposed class. University of Maryland law professor James Grimmelmann, who has been closely following the Google Books litigation on his blog, argued that the Second Circuit’s instructions suggest that the court is already “convinced that Google has a winning fair use defense across the board.”
On remand, Chin did an about-face and dismissed the case on fair use grounds, handing Google a triumphant victory. We named Durie our Litigator of the Week for the November 2013 win. Google is also represented by prolific appellate advocate Seth Waxman of Wilmer Cutler Pickering Hale and Dorr.
In Friday’s brief, the Authors Guild argues that Congress never intended for a profit-driven enterprise like Google’s books project to get swept into the fair use exception. The Guild argues that Google will eat eat away at online bookstore sales, all the while pulling in revenue from ads that greet users of the book project.