Hachette, Copyright Alliance Among Parties Backing Authors Guild's Cert Petition on Google Books
Book publishers Elsevier and Hachette, the American Society of Journalists and Authors (ASJA), a group of writers and the Copyright Alliance were among parties filing amicus briefs supporting the Authors Guild’s petition to the Supreme Court for a writ of…
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certiorari seeking review of the 2nd U.S. Circuit Court of Appeals’ ruling in the Google Books case, the guild said Tuesday. It petitioned the Supreme Court in December to review the 2nd Circuit’s ruling that the Google Books project to digitize portions of the world’s books is a “transformative” example of fair use, saying the 2nd Circuit’s ruling “fundamentally remakes” the fair use doctrine and conflicts with other courts’ fair use rulings. Copyright legal experts have told us they believe the Supreme Court is unlikely to grant the petition (see 1601040063). Elsevier and Hachette jointly argued in their brief that the 2nd Circuit took an “overly expansive view of the meaning and consequences of transformativeness, which displaces the statutory full factorial analysis Congress intended.” The 2nd Circuit’s ruling also “infringes and jeopardizes” authors’ exclusive rights to control their right to reproduce their copyrighted works, Elsevier and Hachette said. ASJA’s brief argued, as expected, that the 2nd Circuit failed to do a required “qualitative analysis of the portions of a work used by the defendant ... and instead it opted in favor of a quantitative analysis that makes no sense in the context of Google’s ‘snippet view’ product.” The 2nd Circuit also “erred by considering ‘transformativeness’ in a manner completely detached from ‘justification’ or fairness,” ASJA said. The Copyright Alliance said the 2nd Circuit’s ruling “employed a fair use analysis that is far removed from” the existing fair use precedent in Campbell v. Acuff-Rose Music, which found commercial parody to be fair use. The ruling also “necessarily ignored numerous important interests and considerations, many of which were reflected” in the Copyright Office’s 2011 mass digitization study, the Copyright Alliance said. Stephen Sondheim and a coalition of other major authors and dramatists jointly argued that the fair use doctrine wasn’t intended “to permit a wealthy for-profit entity to digitize millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.” Google’s deadline for filing its opposition brief to the Supreme Court is March 1.