2016

Google wins divisive copyright battle against authors and publishers

Alessandro Colonier

Following a long legal battle over copyright infringement, royalties fly out the window for authors as a result of the decision to allow Google to digitise books. Image by Tom used under Creative Commons licence.

Following a long legal battle over copyright infringement, royalties fly out the window for authors as a result of the decision to allow Google to digitise books. Image by Tom used under Creative Commons licence.

An eleven-year battle between Google and the Authors Guild and Associationof American Publishers has finally come to an end. On April 18, 2016, the US Supreme Court dismissed the Authors Guild’s appeal from a New York appellate court’s decision finding in favour of Google, effectively ending a long-standing legal battle over copyright infringement and royalties to be paid out to authors and publishers. Alessandro Colonier reports.

In an effort to provide the largest ever online library, Google announced that it would begin digitising the world’s books, estimated to be around 65 million works in 2004. Later that year, Google launched its Google Books service, offering users a chance to search and read small excerpts or passages of relevant publications and eventually purchase copies of those digitised works if desired.

Shortly after launching Google Books, both the Authors Guild and the Association of American Publishers filed jointly a lawsuit against Google, claiming copyright infringement. In its defence, Google cited the fair use provisions provided under US law.

In order to resolve the matter, Google originally proposed an “opt-out” settlement in 2008 which necessarily included all rights holders of all digitised works in Google Books. The settlement also proposed the creation of a Book Rights Registry which would attempt to pay authors and publishers dividends on the profits made by Google. Unfortunately for Google, the settlement was highly contentious for its possible breach of American antitrust laws, and for its handling of “orphan works”, deemed works where the author and publisher could not be found. Indeed, opponents (which included the U.S. Department of Justice) of the original settlement offer argued that Google would unfairly profit from these orphan works to the detriment of the rights holders.

These arguments resulted in Google proposing a revised settlement in 2009. However, in 2011 New York Federal Court Judge Denny Chin rejected the settlement on the grounds that it was “not fair, adequate, and reasonable”. Judge Chin stated that the settlement “would effectively grant Google a monopoly over digital books, and, in particular, orphan books; and (…) such a monopoly would further entrench Google’s dominant position in the online search business”.

Despite some commentators believing that Judge Chin’s position on the proposed settlement was short-sighted and a “missed opportunity to increase competition, increase consumer welfare, and reward innovation,” the rejection nevertheless put an end to any hope of such an agreement between the parties.

Once any hope of settlement had vanished, both parties returned to court to argue over the ambit of the American legislative provisions dealing with fair use. After finally hearing oral arguments in 2013, Judge Chin delivered his judgment later that year in Google’s favour. In his ruling, Judge Chin conceded that Google was guilty of massive copyright infringement; however, Judge Chin ultimately opined that fair use required a case-by-case analysis, and that Google Books was able to provide significant public benefit by advancing the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

Disagreeing with Judge Chin, the Authors Guild decided to appeal this decision in 2014. In their appeal, the Authors Guild argued that Google Books was merely providing a substitute for the works of authors and publishers, increased Google’s profits to the detriment of those rights holders, and that Google’s ultimate selfish motivation was commercial profit rather than public benefit.

In its 2015 ruling, the New York appellate court affirmed Judge Chin’s decision, stating that the ultimate beneficiary is the public, and that Google Books had a highly convincing transformative purpose for the public and its users.

In April 2016, the United States Supreme Court stated that it would not hear an appeal from the Authors Guild, effectively ending an eleven-year legal battle over the ambit of protection afforded by virtue of the U.S. fair use provisions. Inherently, this means that Google Books will be allowed to operate legally and that the excerpts and passages provided when conducting a search are lawful and fall within the context of fair use.

While a Google spokesperson said that Google is “grateful that the court has agreed to uphold the decision of the [appellate court] which concluded that Google Books is transformative and consistent with copyright law”, Mary Resenberger, the Executive Director of the Authors Guild said that “blinded by the public benefit arguments, the court’s ruling tells us Google, not authors, deserve to profit from the digitisation of their book”.

The Authors Guild will continue to closely monitor Google Books to make sure its ongoing digitisation constitutes fair use.

Lawyer Alessandro Colonnier practises in the field of intellectual property. He is a member of PEN, the international group that lobbies on behalf of writers, the right to free expression and freedom to write and read. 

Lawyer and PEN member Alessandro Colonnier

The Faculty of Arts and Social Sciences at the University of Technology, Sydney, supports Sydney PEN

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