16 October 2015

Google Books, Again (Heavy Sigh)

In a result that should really surprise no one — given the fundamental flaws in the Authors' Guild's initial approach and misguided settlement attempt — the Second Circuit upheld the summary judgment entered against the AG's complaint. The Court of Appeals (Leval, J. (opinion author); Cabranes, J.; Parker, J.) summarized its holding as:

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. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in dispute.

Authors Guild v. Google, Inc., No. [20]13–4829 (16 Oct 2015) (PDF), slip op. at 4 (italics in original, boldface emphasis supplied).

This was Keystone Kops litigation.

  • The wrong plaintiffs (as demonstrated by the later problems with class certification, among other problems) sued
  • The wrong defendants (as demonstrated by the later publisher join-in with a different set of defendants, the "independent" HathiTrust action, and a variety of other contortions) under
  • The wrong legal theory/theories (as I objected a decade ago and this Second Circuit opinion reinforces) using
  • The wrong evidentiary basis (summary judgment on fair use for a class?) in
  • The wrong court (as I objected a decade ago, and as development since — particularly in the Sixth Circuit, but also the Ninth and Eleventh Circuits — have reinforced).

I do not consider this a cert-worthy matter for the Supreme Court... except that it is, indeed, coming out of the Second Circuit, which has an utterly abysmal history in front of the Supreme Court on copyright under the 1976 Act. On this record, one can at least rationalize that the Second Circuit reached a defensible result; its reasoning is highly suspect — depending as it does on copyright "principles" and cases derived largely from the 1909 Act without adequate consideration of changes wrought by the 1976 Act or the 1988 accession to the Berne Convention — but that by itself is not enough to justify certiorari. The AG's continuing ineptness in its public presentations, such as its press release accusing the Second Circuit (and Judge Leval in particular, although not by name... which, given his 1992 Harvard Law Review article, should not have surprised anyone once he showed up on the panel at oral argument a year ago) of "reduction of fair use to a one-factor test" (but see slip op. at 27–37), do not make it a credible party. More to the point, on the record in this matter (which is a result of all five mistakes noted in the bullet points above) the best result would be a more "balanced" reconsideration... which would not, in the end, change the result on this record.

Bad arrogant, narcissistic, self-aggrandizing purported representative of the entire community of authors (despite its membership criteria that exclude the majority of authors... and failure to actually represent even the majority of authors who are eligible). No tracking cookie.