Today, the Second Circuit Court of Appeals released its ruling in Authors Guild v. Google, and all artists could be affected by its outcome.
Four years ago, the Google Book Search Settlement was thrown out of court on the grounds that neither the Authors Guild nor Google, the two parties to the agreement, had legal standing to carve up the exclusive rights of the world's authors. In his ruling, Judge Denny Chin wrote that it was for Congress, not the courts, to decide on the future of copyright law.
Since then, however, the courts have been chipping away at the traditional understanding of what copyright means, expanding the scope of what's called “fair use,” that is, how much someone can use of your work without your permission.
Today an appeals court ruled in Google's favor, according to an online article in Fortune.
“It’s finally over. An appeals court confirmed that Google’s scanning of more than 20 million books counts as fair use.“It’s been ten years since authors first sued Google over the decision to scan millions of books, but now an appeals court appears to have confirmed once and for all the scanning did not violate copyright law.”
To be clear, this does NOT directly affect the new orphan works legislation currently being considered by Congress. But it's a safe bet that corporation lobbyists will use it to argue that the decision paves the way for it. Remember that the orphan works proposals now before Congress would permit the commercial infringement of any work orphaned by the law.
“Friday’s appeals court ruling is significant because it clears the legal uncertainty that has been hanging over Google for a decade, and also because it provides more guidance on what qualifies as fair use in a digital age.“In particular, the court states on several occasions how copyright law represents a balance between authors and the public, and points out how many forms of fair use are partly commercial.” [Emphasis added.]
The Authors Guild has announced that it plans to appeal to the Supreme Court:
“We are disheartened that the court was unable to comprehend the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage. We trust that the Supreme Court will see fit to correct the Second Circuit’s reductive understanding of fair use, and to recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience and vitality of our intellectual culture.”
Thanks to all of you who wrote the Copyright Office this summer, and let's all buckle our seatbelts. We could be in for a bumpy ride.
If you haven't already read the letter 12 artists organizations submitted to the Copyright Office two weeks ago, it's here.
We also submitted two other letters challenging the constitutionality of the proposed legislation:
IPA Initial Comments: Because Article 1, Section 8 of the Constitution grants authors the exclusive rights to their work, it is our understanding that those rights cannot be abridged without a constitutional amendment.
IPA Reply Comments: “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.” – James Madison