The Authors Guild Files Its Memorandum in the Google Book Scanning Case

The Authors Guild filed a motion for partial summary judgment in the Google book scanning case.  The motion calls for the following:

1. Google’s unauthorized reproduction, distribution, and display of in-copyright books violates 17 U.S.C. §§ 106(1), (3), and (5);
2. Google’s unauthorized reproduction, distribution, and display of in-copyright books are not “fair uses” pursuant to 17 U.S.C. §107; and
3. Under 17 U.S.C. §504(c)(1), representative plaintiffs and members of the certified class are entitled to an assessment of statutory damages of $750 per Book for Google’s copying, distribution, and/or display of Books in violation of 17 U.S.C. §§ 106(1), (3), and (5).

17 U.S.C § 106 reads as follows:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

I guess the Guild has accounted for the part of the statute that reads “Subject to sections 107 through 122” with the second point of the filing.  Google’s reasoning in its brief calling for a finding of fair use is pretty reasonable in light of precedent.  The Guild’s memorandum of law supporting the motion counters by saying Google’s scanning is not transformative at all because it is verbatim copying in whole and snippets are not transformative.  The Guild cites Supreme Court and Second Circuit precedent to that effect.  The Guild argues further that Google’s purpose is commercial in that it seeks an advantage over other search engines which do not have similar indexing and display of books.

Google argued that the scanned books did not act as a market substitute for the books at issue.  The Guild counters that the market was indeed harmed because it distributes books to libraries in return for scanning their collection.  The harm in this situation is that the libraries did not seek a digital license from the publishers to scan nor bought digital copies.  Under Supreme Court precedent, the harm should be measured to potential markets, such as a licensing market.  The Guild, being the nice guys that they are, seeks the statutory minimum of $750 per infringement.  Judge Chin will have his work cut out for him.  Reply briefs are due near the end of August.

Download the Memorandum of Law in Support of Authors Guild.  [MG]