• by Wendy Davis  @wendyndavis, March 18, 2013

Hollywood is siding with the Authors Guild in its attempt to revive a copyright lawsuit against five universities that worked with Google to digitize books.

The Motion Picture Association of America argues in a friend-of-the-court brief that the trial judge incorrectly ruled that the universities were protected by fair use principles.

Among other arguments, the MPAA contends that U.S. District Court Judge Harold Baer in New York didn't adequately consider Google's role in the digitization initiative. According to the MPAA, Google's involvement gave the digitization project a commercial purpose that "weighs heavily against a finding of fair use."

The litigation dates to September of 2011, when the Authors Guild brought a copyright infringement lawsuit against the HathiTrust -- a joint digital book-storage project of the University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University.

Last year, Baer ruled that the HathiTrust's book digitization project was "transformative," and therefore met the criteria for fair use. He described the initiative as an "invaluable contribution to the progress of science and cultivation of the arts," in a ruling granting summary judgment to the HathiTrust.

The Authors Guild is appealing that ruling to the 2nd Circuit Court of Appeals. The Authors Guild also is suing Google separately for allegedly infringing copyright by digitizing books and making them searchable. The MPAA argues in its friend-of-the-court brief that Baer's fair use finding was based on an "incomplete view of the issues at stake."

The entertainment organization specifically criticizes Baer for failing to take into account Google's role in the project. The MPAA argues that the universities received digital copies of books -- which they would otherwise have had to pay for -- in exchange for allowing Google to digitize them.

"This quid pro quo arrangement saved defendants the many millions of dollars that the digital conversion services provided by Google would no doubt cost in a fair market," the MPAA argues. "By using the authors’ works (without permission) as the currency for this exchange, defendants obtained a significant commercial benefit -- and served Google’s significant commercial goals -- to a degree that weighs heavily against a finding of fair use."

The MPAA also argues that Baer's decision "effectively preempted" public debate about "how best to balance the potential benefits of mass digitization and the appropriate rewards for authors and other rights owners under the copyright system." The group says that those issues required input from a broad array of sources, not merely parties in a private lawsuit.

Entertainment companies and Google have often been on opposite sides of legal battles regarding digital media. Most famously, Viacom sued Google's YouTube for allegedly infringing copyright by hosting pirated clips. That lawsuit is still pending in federal court in New York.