Important Fair Use Decision Stands, Helps Keep Authors’ Works Findable

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.