by Authors Alliance co-founder Pamela Samuelson

In December 2015, the Authors Guild asked the U.S. Supreme Court to review the Court of Appeals ruling that Google had made fair use of the in-copyright books that Google scanned from research library collections for its Book Search project in order to index their contents and serve up snippets in response to user search queries. Seven amicus curiae (friend of the court) briefs were filed in February in support of the Guild’s position. (The briefs can be found here.)

A common theme running through these briefs is that fair use should not be available as a defense to copyright infringement unless the defendant’s use resulted in the creation of a new work of authorship, such as a parody of a popular song or a critical commentary that quotes from the criticized author’s work. If someone merely uses an author’s work for a different purpose than the original and does not create a new work, the briefs argue that this should not be considered “transformative,” as the Second Circuit has ruled in the Google case, or weigh in favor of fair use.

“Transformativeness” has become an important factor in fair use cases since the Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc., which tested whether a rap parody version of Roy Orbison’s famous “Pretty Woman” song was fair use or infringement. In deciding whether the challenged use is fair, the Court directed judges to consider if the use ”supersede[s] the objects of the original creation,… or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” The Authors Guild reads this definition differently than the Second Circuit does.

The Authors Guild’s attack on the different purpose cases is, of course, mainly aimed at Google. But if the Guild and its amici are right, then a rather large number of “different purpose” fair use cases that courts have decided in the past decade or so would seemingly fall as well. So let’s review some of them to consider the implications of the Guild’s position.

What would be the implications for search engines? Two of the most prominent Ninth Circuit different purpose fair use cases involved search engines. The Second Circuit’s Google decision regarded them as soundly decided. One involved a photographer named Kelly who objected to the thumbnail-sized images of his photographs that search engine Arriba Soft served up in response to user queries. The Ninth Circuit thought Arriba Soft had made fair uses of Kelly’s photographs because the thumbnail-sized images had a transformative purpose in helping users find relevant content, because the images were too small and low in resolution to be substitutes for the originals, and because the thumbnails did not harm the market for his work; indeed, by helping people find his images, Arriba Soft might help Kelly get new customers.

When the Authors Alliance filed a brief in support of Google’s fair use defense, it emphasized that Google Books helps authors because it allows prospective readers to discover that their books exist and contain relevant information. Google Books also allows authors to discover other authors’ works that are relevant to their own research.

Search engines are not the only useful resources that would get shut down if the Guild and its amici have their way with the different purpose fair use cases. Disgruntled students could win a court order to stop iParadigms from operating its plagiarism detection software that schools have been using to check on the originality of student papers. On a different purpose rationale, an appellate court upheld iParadigms’ fair use defense.

Consider also these different purpose fair use cases: A prospective expert witness, who later became unhappy because he was not hired as an expert, lost on fair use grounds when he sued lawyers for copyright infringement for copying his CV and distributing it to a court and opposing counsel in pre-trial proceedings. Officials of a state bar association prevailed on fair use grounds for copying portions of a lawyer’s blog to use in disciplinary proceedings against her. Use of excerpts from the plaintiff’s book in pleadings to support a harassment claim was similarly ruled fair use. A blogger won a fair use defense for posting an unflattering photo of a businessman in connection with her extensive criticism of his business practices. eBay won a fair use defense to quash a photographer’s claim of infringement based on user displays of images of his photographs when users were trying to resell magazines on whose front cover the photographs appeared. And an architect made fair use of a sculpture when taking a photograph for his portfolio of the elaborate hallway he had designed for a condominium that included the plaintiff’s art glass creation.

All of these different purposes cases seem soundly decided and consistent with the Supreme Court’s application of the statutory fair use test. The Guild and its amici have not sought to distinguish these cases from the Google case. They instead reject the notion of different purpose fair use altogether.

The Authors Guild and the Authors Alliance both support the application of fair use when authors quote from pre-existing works when writing new works on the same or similar topics. But the Guild refuses to accept the different purpose fair use cases. The Authors Alliance has a more positive view of the different purpose fair use cases. If the Supreme Court decides to review the Google decision, the Authors Alliance will file a brief to explain why Google’s different purpose use is much fairer to authors than the Guild has so far been willing to admit.