Google and the Authors Guild had worked out a settlement, but it was rejected in 2011 by a district court judge who deemed it unfair to authors, dropping the case back into court.
Then in October, New York's 2nd Circuit Court of Appeals sided with Google and ruled the firm had acted legally when it scanned works — including those still under copyright — for its Books service.
In his ruling, judge Pierre Leval said that Google's service does not devalue an author's work because having parts of the books online does not provide a meaningful alternative to having the full book (either by buying it or getting it from a library), and that Google was not meaningfully profiting off of its service — leaving it under the umbrella of fair use:
Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.
In the writ, a copy of which was provided to The Post ahead of time, the Authors Guild rejects that ruling and argues that it conflicts with other copyright rulings made around the country on how the laws apply in the digital age, and has far-reaching consequences for the future of U.S. copyright law:
This case represents an unprecedented judicial expansion of the fair-use doctrine that threatens copyright protection in the digital age. The decision below authorizing mass copying, distribution, and display of unaltered content conflicts with this Court’s decisions and the Copyright Act itself. This case also presents important issues on which the circuits are split, highlighting the need for this Court to act.
The Authors Guild does not want to shut Google Books down, but it does want Google to pay copyright fees, said Mary Rasenberger, executive director of the Authors Guild and a copyright attorney, in a statement.
“Google copied books illegally—without permission, and because it could. It was inconvenient for it to seek permission, so it’s that simple,” she said in a statement. “Its actions cannot be justified after the fact just because Google Books uses the books to provide a research service in addition to the many other uses it has made for profit. ... All we’re asking is for authors to be compensated, if they wish, for the value their works bring to Google. We want to make that very clear. Our members are some of the biggest users of Google Books.”
For its part, Google has said in the past that it believes Google Books does fall under fair use, and noted that it has become an invaluable research tool for many. It's also said that it would be prohibitive for it to provide the service and pay authors what has been determined by copyright law. The company did not immediately respond to a request for comment on the Supreme Court petition.