• by Wendy Davis , Staff Writer @wendyndavis, May 8, 2013

The Authors Guild's odds of winning its long-running lawsuit against Google appear to be dwindling, at least judging by comments made this morning by judges at the 2nd Circuit Court of Appeals.

While none of the judges definitively said how they would rule, some of their remarks indicated they believe Google's book digitization project is protected by fair use principles. Circuit Judge Barrington Parker, one of the three judges on the panel that heard the case today, said early in the 90-minute argument that he believes Google's project “has enormous value for our culture.”

Later he added: “It seems to me there is a rather strong argument about the value of this project.”

Parker elaborated that there is an “enormous societal benefit” to digitizing books. For instance, he said, people can produce works of “immense scholarship” without necessarily needing to travel to a distant library in order to read an obscure book.

If Google's project turns out to be protected by fair use, the 8-year-old lawsuit will end in a complete victory for the search giant.

The battle stems from Google's decision to digitize library books and show snippets of them in its search results -- along with links to sites where people can purchase the books. The Authors Guild, which counts around 8,500 members, says that Google is infringing copyright by copying the books and displaying excerpts from them. The group filed a class-action lawsuit, and asked to be allowed to represent all authors with registered copyrights in books.

Google has always said it has a fair use right to digitize books in order to make them searchable. The company also says opposed the Authors Guild's bid to proceed on behalf of a class, arguing that many authors think that Google Books will benefit them.

Circuit Court Judge Denny Chin in New York ruled last year that the Authors Guild can represent a class of authors, but Chin hasn't yet ruled on the crucial fair use questions.

Google appealed Chin's decision to allow a class-action to the 2nd Circuit, heard arguments about the issue this morning. Appellate judges typically don't announce their decisions until months after hearing arguments, but the three judges on the panel this morning still gave some strong hints about how they might handle the case.

First of all, some of the judges suggested it makes more sense to decide whether the project is protected by fair use principles before ruling on whether the Authors Guild should be able to proceed as a class.

Judge Pierre Leval said several times that the appellate court simply put the class certification issue on hold, and send the case back to the trial court for a decision about the fair use questions. If Parker or Guido Calabresi -- the third judge on the panel -- thought this was a bad idea, they kept that opinion to themselves.

More importantly, Leval and Parker clearly expressed skepticism about the Authors Guild's position that the digitization project could harm authors. Leval had sharp questions for Robert LaRocca, lawyer for the Authors Guild, about whether any Web users who were interested in a particular book would decide against purchasing it because brief snippets were available through Google.

Parker added that it was "common sense" that at least some authors would benefit by the project, which would give their books exposure and offer readers a way to purchase them.

The judges also wanted to know what the Authors Guild hoped to get out of the case. LaRocca said they were seeking $750 for each book still in copyright when it was scanned. That still leaves unanswered the question of how Google could proceed going forward, given that new books are constantly being published. LaRocca suggested that a court could order Google to pay a compulsory license fee for each book that it scanned and added to its index.