US court hears Authors Guild's Google appeal

Google’s effort to scan and digitize millions of library books violates copyright law and deprives authors of licensing fees, royalties and sales, a lawyer for the Authors Guild told an appeals court in New York yesterday (3rd December).

The Authors Guild has taken its battle with Google over the digitizing of out-of-print library books to the Second Circuit Court of Appeals in the US after a judge ruled in Google’s favour in 2013.

The Authors Guild’s lawyer Paul Smith argued in front of three appeals judges that Google’s digitizing of millions of books was done for commercial reasons, to increase traffic to Google search engines and deprived authors of a potential market to license books for search. He also argued the Google project stretched what was lawfully allowed under the "fair use" clause of copyright law.

However, Google’s lawyer Seth Waxman argued that the process had “revolutionized” how people find books and that authors’ sales were boosted through the depository, rather than harmed.

“There is no evidence in this record, none, of any market harm to the authors," Waxman said, according to Reuters. 

Google revealed it has made no profit on the project despite investing $125m in it, according to Publishers Weekly, but he admitted Google did see the initiative as adding value to its businesses.

In 2013, Judge Denny Chin found that Google’s scanning of millions of books and posting snippets of them online constituted “fair use” under US copyright law.

The Authors Guild has also lost an appeal in similar litigation against the scanning company Google used to digitize the books, HatihiTrust, in June this year.

There was no timetable given for the count of appeal’s decision on the case. However, Circuit Judge Pierre Leval said most examples of fair use are commercial in nature, for example when newspapers quote other newspapers, and told the Authors Guild's lawyer: "I would be surprised if you're going to win the case by pointing out that Google, like the New York Times, is a profit-making enterprise.”

Meanwhile on the eve of a separate US litigation case against Apple, iBooks negotiator Eddie Cue has told Fortune magazine  that he would implement the agency agreement again but “take better notes next time”.

Cue gave the interview 12 days before Apple is due in the federal appeals court in the US on 15th December to try and overturn the e-books price-fixing judgment. “We feel we have to fight for the truth,” Cue said. “Luckily, Tim (Cook, Apple’s c.e.o) feels exactly like I do, which is: you have to fight for your principles no matter what. Because it’s just not right.”

He added: “Is it a fact that certain book prices went up? Yes. If you want to convict us on that, then we’re guilty. I knew some prices were going to go up, but hell, the whole world knew it, because that’s what the publishers were saying: ‘We want to get retailers to raise prices, and if we’re not able to, we’re not going to make the books available digitally.’ At the same time, other prices went down too, because now there was competition in the market.”

Apple is set to argue in the appeals hearing that the court’s original decision “turns the antitrust laws upside down,” because its entry into the market “kick-started competition,” (with Amazon) thereby “delivering higher output, lower price levels, and accelerated innovation.”