Pamela Samuelson, President, Authors Alliance

There was very good news for authors in the Supreme Court’s decision not to review last year’s ruling in the Authors Guild v. Google litigation. That decision, which will now stand, found that Google’s scanning of in-copyright books from research library collections for purposes of creating an index and serving up snippets in response to user search queries was fair use, not copyright infringement. The Authors Guild’s leadership (and its lawyers) are undoubtedly disappointed in this outcome. But all authors who want their books to be found by readers who are interested in learning from those books have reason to celebrate the end of this decade-long litigation.

While we obviously can’t know for sure what the Court would have done had it decided to hear the Guild’s appeal, it is fair to infer that the Court was not so outraged by the Second Circuit’s ruling that it felt compelled to put the case on its docket. The Court’s rejection of the Guild’s petition does not, of course, mean that it approved the fair use ruling. Yet it is worth noting that the Court gave considerable deference to Judge Leval’s conception of fair use in its 1994 Campbell v. Acuff-Rose decision. It was the very same judge’s fair use analysis that the Court would have reviewed had it taken the Authors Guild v. Google case.

Authors Alliance filed a friend of the court brief in support of Google’s fair use defense, saying: “Book Search makes it possible for many who are not privileged to have physical access to research library collections to be able to discover that our works exist.  Interested researchers should be able to find in an efficient way the ideas and contributions to human knowledge contained in our writings. We want our intellectual legacies to extend to a new generation of readers who nowadays search and find books almost exclusively online. Creation of a full-text searchable database of books provides these benefits.”

Judge Leval recognized the public benefit in making books more findable: “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.”

Judge Leval could have gone on to say that authors of published books want those books to be findable and to be useful to readers who are looking for information that the books contain. So it isn’t just the public (and Google) who benefit from Book Search, but these authors as well.

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.

A version of the following letter by Authors Alliance co-founder Pamela Samuelson ran in the Wall Street Journal on February 13 in response to an earlier opinion piece published by the Authors Guild. In the full-length editorial below, Samuelson takes issue with the claim that Google Book Search undermines fair use and hurts authors. Many of our members and allies are familiar with the ongoing litigation between the Authors Guild and Google. We at Authors Alliance filed an amicus brief in support of the fair use defense, and have been closely following the case. Thus far, rulings have favored Google, and the Authors Guild is currently petitioning the Supreme Court to review the case. (The Court’s decision on whether or not to grant certiorari is expected this spring.) In light of this, strong voices in support of fair use and the public good need more than ever to be heard.

In a recent op-ed published in the Wall Street Journal, entitled “How Google Stole the Work of Millions of Authors,” Roxana Robinson, President of the Authors Guild, charged Google with stealing the works of millions of authors because Google digitized books from research library collections, indexed their contents, and served up a few snippets per book in response to user search queries.

I beg to differ. Google Book Search is a boon for both readers and authors.

Book Search consists overwhelmingly of non-fiction books, dense with knowledge, scanned from university research library collections. They were mostly written by academic authors in the hope and expectation that the books would be read by others and contribute to the ongoing progress of knowledge creation and dissemination. Their authors want the books to be discoverable.

Conventional research library catalogs can help some prospective readers to find some books, but they provide only limited information about the books in the libraries’ collections and fall short of ensuring the long-term intellectual legacies of the books’ authors. Full-text search databases such as Google Book Search do considerably more to stave off scholarly oblivion. These services offer authors new hope that their books will find readers and will contribute to scholarly discourse that will promote the ongoing progress of knowledge. Even those who lack physical access to research library collections can find out that books exist that they might want to buy or borrow. This is consistent with the constitutional purpose of copyright law.

Perhaps some best-selling Authors Guild members do not need full-text search tools to reach their audiences. But the Guild’s position does not represent the interests of all authors. Many professional writers, as well as academic authors, are likely to benefit from full-text search tools such as Book Search. Indeed, an empirical study of the views of 880 professional writers, introduced in evidence in the Google Books case, reported that well over half of authors surveyed affirmatively approved of Book Search snippets, almost half thought that Book Search snippets would help sales of their books, and only a tiny minority (four percent) thought that Book Search snippets would be harmful.

Despite the many benefits that Book Search provides for authors and readers, the Authors Guild and a small number of its members have been seeking a windfall award of $3 billion in statutory damages for the copying of scholarly books from research library collections in which very few of the Guild’s members actually own copyright interests. The Guild is also seeking injunctive relief to remove Book Search from the Internet, a sweeping remedy that would harm the interests of authors who want readers to find their books.

In ruling against the Authors Guild, the Second Circuit concluded that Google Books “augments public knowledge by making available information about plaintiffs’ books without providing the public with a substantial substitute for matter protected by the plaintiffs’ copyright interests.” The information that Google makes instantaneously available about relevant books “would otherwise not be obtainable in lifetimes of searching.”

This fair use ruling should stand. It serves the interests not only of readers, but also of authors who want their works to be discovered during their lifetimes and beyond.

Read the letter in the Wall Street Journal.

The following is a guest post by Aleksander Danielyan and Lauren Wong, third-year law students of the Intellectual Property, Arts, and Technology Clinic (IPAT) at the University of California, Irvine School of Law. Over the past year, UCI-IPAT and the Samuelson-Glushko Technology Law & Policy Clinic represented Authors Alliance in a Library of Congress Rulemaking seeking to preserve authors’ fair use rights in the digital age.

Over the past year, we have had the pleasure of representing Authors Alliance along with a coalition including the American Association of University Professors, the Society for Cinema and Media Studies, the University Film and Video Association, and film scholars Bobette Buster and Mark Berger in a Library of Congress rulemaking in which we sought to preserve e-book authors’ rights to make fair use in the digital age.

At issue is the Digital Millennium Copyright Act. As Authors Alliance has written previously, the DMCA makes it illegal to break encryption or any technological lock that protects copyrighted content. The predictable effect is that many legitimate uses are impossible under the DMCA. In our case, authors want to make fair use of audio and video content in e-books—but can’t because the DMCA makes it illegal to access popular media like DVD and Blu-ray.

In comments filed over the past year, we asked for an exemption to allow multimedia e-book authors to circumvent technological protection measures in order to embed high-quality content into their works for fair use purposes—impossible without a special exemption from the Librarian of Congress. A previous exemption allowed circumvention of DVDs and online distribution services only in non-fiction e-books offering film analysis. This round, we asked that the 2012 exemption be modified to allow authors to access Blu-ray content and use this high-quality content in all works, not just film analysis.

Much of this year-long effort involved collecting evidence and demonstrating that access to high-quality content like Blu-ray is essential for e-book authors to exercise their fair use rights in the digital age. We also emphasized the difficulties e-book authors face when licensing such content. In May we traveled to Washington, D.C. to bring our case to the staff of the U.S. Copyright Office and the National Telecommunications and Information Administration. In a lengthy hearing at the Library of Congress, we presented passionate and informative perspectives on the 1201 exemption. Authors Alliance Executive Director Mike Wolfe testified, along with noted film scholar Bobette Buster. UCI Professor Jack Lerner and IPAT student Aaron Benmark also testified, together with Professor Blake Reid and Molly McClurg from the Technology Law & Policy Clinic at Colorado Law.

Late last month, the Acting Librarian of Congress announced this round’s Final Rule, which included one of the two modifications we had requested. The Rule provides an exemption that allows e-book authors “offering film analysis” to circumvent digital locks on Blu-rays, DVD, and digitally transmitted video such as downloads and streaming for purposes of criticism and commentary. The Rule gives authors everywhere access to a wealth of high definition content—particularly, from Blu-ray—that they need in order to make fair use in multimedia e-books. Unfortunately, the Acting Librarian declined to provide an exemption for e-book authors writing about subjects other than film analysis.

Although we are disappointed that the Rule did not provide an exemption for all authors who need it, we are celebrating the Rule as a victory for fair use in the digital age. The Rule demonstrates that the Register recognizes the inherent danger to lawful uses that the DMCA presents in a swiftly changing technological landscape. As e-book technology continues to become more interactive, engaging, and personalized to the needs of individual readers, we see immense potential in a market for e-books that can evolve at the fast pace of technological innovation. But in order for that to happen, authors must be able to make the type of fair uses that they have always made in the brick-and-mortar world. Fortunately—at least for authors offering film analysis—this Rule essentially preserves that right.

We would like to thank our fantastic colleagues at Authors Alliance for the opportunity to represent them in such an important proceeding; Bobette Buster, the AAUP, and others who joined this effort; IPAT students Ranika Morales, Mike Lee, Kyle Reynolds, and Aaron Benmark; the talented team at Samuelson-Glushko Technology Law & Policy Clinic, including Professor Blake Reid and students Molly Priya McClurg and William Kaufman; and our visionary clinic director, Jack Lerner.

Authors Alliance co-founder Pamela Samuelson has published an opinion piece in today’s Chronicle of Higher Education on the substantial benefits the recent fair use ruling in the Google Books case brings to scholarly authors.  She outlines four reasons why the ruling in favor of Google in the Authors Guild v. Google case advantages authors and researchers, despite the Guild’s arguments to the contrary. The Authors Guild has announced that it will petition the Supreme Court to review the decision. If the Court does take the case, we at Authors Alliance will continue our involvement to show our support for authors, scholars, researchers, and the public—all of whom benefit from fair use access to knowledge and information.