‘Tis apparently the season for Hail Mary appeals to the Supreme Court. We already heard about Apple’s attempt to get its agency pricing antitrust conviction re-heard. It seems only fitting that, in the same month, the Authors Guild brings to SCOTUS an appeal of the case that some have said was indirectly responsible for the agency pricing situation coming about in the first place.

I refer, of course, to the kerfuffle surrounding Google Books, nee Google Print. The Authors Guild first brought suit against Google over the project all the way back in 2005—before I had even started writing for TeleRead. Google’s crime? Scanning and indexing as many books as it possibly could, to seed a search engine to let people search on their content.

The case dragged on and on and on, losing a few years as an attempt at a settlement that would let Google act as an e-book store meandered into the weeds and got lost, before finally being rejected by Judge Denny Chin as too much of an overreach. Eventually, when the Authors Guild’s request for class-action status made its way up to the appeals court, the appeals court told Judge Chin, “You know, this could be fair use. Why don’t you rule on that first?” Perhaps eagerly grasping at the first available straw to get the case out of his courtroom, Judge Chin ruled it was fair use and dismissed the case, passing it on to the appeals court. Unsurprisingly, the appeals court concurred. Appeals court Judge Pierre Leval gave a great lecture in which he explained exactly why Google books was fair use.

Meanwhile, the Authors Guild also sued Google’s partner in scanning, HathiTrust. That case was also dismissed as fair use, and the dismissal was likewise affirmed on appeal. The Authors Guild decided not to appeal that case any further, perhaps so as to concentrate its effort on the Google Books matter.

Since the appeals court ruling, the Google Books affair has been largely quiet, punctuated only by people wondering “whatever happened to Google Books?” or else mounting defenses of it on the basis that it’s good for publishers. But the Authors Guild hasn’t been sitting idle, as this new brief filed with the Supreme Court demonstrates.

It’s kind of amazing to consider that this case was filed before the Amazon e-book revolution even began. In 2005, all anybody even knew of e-books was a few fairly obscure companies that sold books that could be read on PDAs, and a string of high-profile flops as too few people wanted to read e-books from LCD screens to invest the large sums of money their makers were asking for.

A kid who was born when the Authors Guild filed the original suit would by now be in the fifth or sixth grade—and probably reading lots of e-books on his Kindle. This is a particularly apt observation because, according to The Battle of $9.99, it’s probably the publishing industry’s distraction with Google Books that allowed Amazon to sidle up to the publishers with its brand new Kindle, open up operations as an e-book vendor, and proceed to eat their lunch with $9.99 loss leaders before they even knew what was going on. That, in turn, led to Apple offering them a deal on agency pricing, which led to the other case seeking to go before the Supreme Court right now.

If you want to read the whole 186-page brief the Authors Guild filed to request a hearing by the Supreme Court, the Authors Guild is hosting it on its web site. If you just want to get an overview of the tack the Authors Guild is taking, you might do better just to read the first page or two of summary, then check out the Authors Guild’s questions-and-answers page on the matter.

Effectively, the Authors Guild is concerned over allowing the willy-nilly copying of twenty million complete books for a commercial purpose to be considered fair use, and wonders if the district and appeals court allowed the “transformative” nature of the use to eclipse the other three factors of the four-factor fair use test. But what really seems to burn their biscuits is that Google is making money off their content, whereas they should be the only ones allowed to make money off their content. (Not that any of them ever tried putting a search indexing project of this nature together. Just like you didn’t see any of them innovating e-books, either. But they sure do have it in for the people who did!)

I’m not a lawyer, of course, so any prognostications I make will just be guesses, but I’m going to make those guesses anyway, because it’s fun to guess. I expect this case stands a better chance of being heard by the Supreme Court than the Apple case. The Apple case is basically a bog-standard antitrust case, with nothing special about it except in the minds of Apple’s defense team—and every antitrust defense thinks theirs is a special case.

But as the Authors Guild points out, it has been some time since SCOTUS last addressed a fair use case of any substance, which puts it all the way back before the Internet age had gotten into full swing. Whether it should be permissible to copy entire works for the purpose of seeding a search engine is definitely an Internet-era question, and it could have implications not just for Google Books, but for the entire concept of search engines.

After all, in order to index the entire Internet for its Google search, Google has to make multiple complete copies of that, and it certainly didn’t ask for anyone’s permission ahead of time the way the Authors Guild wanted it to for books. It would be ridiculously unwieldy even to try. Instead, it uses an opt-out system, where sites that don’t want to be indexed can say so in their robots.txt files—a system similar to the kind of opt-out Google offers for Google Books. The only real difference between indexing the Internet and twenty million books is that it’s somewhat harder to copy the information from books. If the Authors Guild succeeds in getting Google Books invalidated, the precedent could open any other search engine to legal challenge.

At any rate, now we get to wait and see if anyone files amicus curae briefs, and what Google’s own brief in opposition will say. And then we’ll get to wait and see if the Supreme Court wants to deal with it.

I hope the whole affair will be over with by the time that kid would be ready to enter college.


  1. IANAL, but I think the worst case scenario is that this would take a little less than two years to complete, and that’s if the Supreme Court decides next October to review the case. If they deny the petition, then Google Library is fair use, end of story. Of course, like any fair use determination, it’s limited to this particular case. Assuming Google wins, it does seem likely that if Yahoo, Microsoft, or any other entity wanted to create its own search engine database providing approximately 3 line snippets would probably be safe.

    I also disagree with the idea that the BPH publishers were distracted by the Google Library lawsuit. They were not a party to the lawsuit, and Google had already engaged them in providing PDF versions of their books for the Google Publisher program, which allows searchers to view many full pages of a book as an advertising tool. If anything, the publishers were just not expecting the Amazon Kindle to become the dominant ereader, and did not understand that its proprietary ebook format and DRM available only on the Kindle would allow Amazon to lock in the readers (despite the examples of Betamax/VCR and HD-DVD/Blu Ray). I could write several more paragraphs on where the publishers went wrong, and why the anti-trust lawsuit is unrelated to this one but I think it would get too far off topic.

  2. CM said “In 2005, all anybody even knew of e-books was a few fairly obscure companies that sold books that could be read on PDAs, and a string of high-profile flops …”

    Poor memory there. Baen has been selling their complete month’s e-books in multiple formats since late 1999. I bought Lois McMaster Bujold’s Memory via Fictionwise in December 2003. I read them on a PC or a mainframe terminal.

  3. @ Mike

    And Baen is a tiny SF publisher. I would call them fairly obscure, absolutely. And the description of the ebook at the time is reasonable accurate (if you allow for a degree of hyperbole).

  4. Ellora’s Cave, Baen, eReader, Fictionwise, MobiPocket…they were all obscure, by definition. I probably should have been more clear that by the high-profile flops I was referring to all the attempts to make LCD e-book reading hardware, like the RocketBook.

    The publishers and devices might not have been “obscure” to their fans, but honestly, they didn’t really have that many fans. Even if the devices and the e-books were bought by tens of thousands of people, it was a teeny tiny fraction of the overall market. E-books made up significantly less than 1% of the overall book market. That’s basically the textbook definition of “obscure.” Even after companies made e-ink readers, they didn’t sell all that well. You didn’t have actual significant quantities of people start buying until Amazon lured them into it with the Kindle.

    Even into the era of the Kindle, Baen’s e-book market continued to be relatively obscure—even to people who knew about Baen the publisher. Baen kept getting asked by people why its e-books weren’t available for Kindle, even though it had been selling e-books for over ten years! It finally had to throw in the towel and change the way its entire e-book store worked so as to get its e-books into Amazon and stop leaving huge amounts of money on the table from people who would buy from Amazon but not from Baen.

    So, yes, they were obscure. Even Baen.

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