More than a decade ago, in 2004, Google initiated a program, in concert with several university and large public libraries, to scan and digitize the entire contents of millions of books without regard to whether they were or were not still under copyright, ultimately making complete digital copies of more than 20 million books. Google’s goal was to expand its search business to include print works as well as online works. It spent hundreds of millions of dollars on this project, suggesting what Google believed to be its commercial potential.

Google claimed that its exploitation of these books without the permission of the copyright owner was justifiable as a fair use because when it returned material from them in response to a search request, it would only provide what it characterized as snippets of content.

In 2005, the Authors Guild filed a putative class action against Google on behalf of authors and alleging copyright infringement. In that same year, a group of publishers filed a similar case and the two cases were consolidated. Following protracted negotiations, all parties entered into a proposed settlement that would have permitted Google to continue its project in return for payments to authors and publishers. However, in 2011 the district court overseeing the settlement discussions rejected the proposed settlement as too generous to Google – saying that it would grant Google significant rights to exploit entire books and would deprive the copyright owners of the right to exclude others from using their property, a right the court deemed fundamental and beyond dispute.

In 2012, the publishers settled out of the case, leaving the Authors Guild to continue the fight on behalf of copyright holders. The district court certified the class and Google appealed.

In 2013, the Second Circuit declined to rule on the class certification issue and sent the case back to the district court for a decision on cross motions for summary judgment on the issues of infringement and fair use. In its decision, the appellate court hinted that it might look favorably on Google’s fair use defense. Later that year, the district court, interestingly (and perhaps taking a cue from the Second Circuit decision), reversed course from the signals it had earlier sent and decided that Google’s use qualified as a fair use. The Authors Guild appealed this decision to the Second Circuit and TAA coordinated the preparation and filing of an amicus brief supporting the position of the authors on the fair use question.

Last fall, the Second Circuit, true to its earlier hints, affirmed the decision of the district court and upheld Google’s fair use defense. The Authors Guild believes that this decision is incorrect – that it mischaracterizes Google’s use as transformative, that it gives this characterization too much weight in relation to the other factors that must be considered in any fair use case, and that it was too heavily influenced by the social benefit that might be provided by an online searchable database operated by an enterprise that is clearly commercial.

Accordingly, the Authors Guild has petitioned the U.S. Supreme Court for a Writ of Certiorari to send the case up for reconsideration. Once again, TAA is coordinating the preparation and filing of an amicus brief supporting in this instance the Author’s Guild petition for certiorari. In this latest effort, TAA has joined with other prominent author-focused professional associations to support the interest of authors in guarding against expansion of the fair use right in unreasonable derogation of the rights of copyright holders to control the commercial use of their copyrighted works and to be the ultimate determiners of when and if their print works will be converted into easily exploited digital formats. In its petition, TAA expects to argue for broad protection of academic and scholarly works as highly creative and expressive, notwithstanding the fact that they also convey trustworthy factual information and merit worthy ideas. It will also argue that a perceived public demand or social good cannot by itself justify a judicial expansion of historical and legislative notions of fair use. TAA will argue that the court should give more weight to the fact that Google scanned the entirety of the books in question and distributed digital copies of those books back to libraries that otherwise would not have been permitted to scan them. And finally, TAA will push back on the notion that because Google only returns snippets in response to search requests this action does not have a negative impact on the value of the underlying works and that, in fact, scholarly and academic works among those at issue are especially sensitive to displaced sales and licensing revenue because of the slender margins on which they depend.

It is worth noting that not all authors are of one mind on the issues presented here. Some – those who are intensive users of the copyrighted works of others – are inclined to favor broadening of digital access to all published works. TAA recognizes that many of its members may be in this camp, but points out that TAA is not taking a position against digital access; instead it is only contending that there is no more reason that digital aggregation and access should be free than that researchers should have the right to demand print copies at no charge simply because they propose to use them for scholarly or academic purposes. Moreover, the perspective of those favoring a broadening of fair use access is ably represented in the case by well regarded members of that camp like Pam Samuelson.

Keep your fingers crossed. The Authors Guild, with the support of TAA and other like-minded professional associations, has a formidable opponent with very deep pockets and highly skilled advocates. Let us hope that the Supreme Court takes an interest in the issue and is ultimately sympathetic to the cause of authors and copyright holders.

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Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for more than 35 years. He is a TAA Council Member and a regular speaker at TAA conferences. sgillen@whe-law.com