• by Wendy Davis  @wendyndavis, April 18, 2016

The Supreme Court has refused to hear the Authors Guild's appeal of a decision that cleared Google of infringing copyright by digitizing books and displaying excerpts in its search engine.

The court's move marks a significant defeat for the Authors Guild, which has been battling Google since 2005 over its book digitization project. That initiative involved scanning millions of library books -- including ones under copyright protection -- in order to make their contents searchable.

The Authors Guild has argued for the last 11 years that Google didn't have the right to make copies of books under copyright, or display snippets of them, without the owners' permission.

Authors Guild president Roxana Robinson characterized the Supreme Court's decision as a "colossal loss."

“The denial of review is further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector, not only with books, but across the spectrum of the arts," she said in a statement.

The Supreme Court's refusal to hear the case means that a ruling issued last October by the 2nd Circuit Court of Appeals in New York will stand. That court said Google's book project was "transformative," and therefore protected by fair-use principles. "The purpose of Google’s copying of the original copyrighted books is to make available significant information about those books," that court said in its ruling.

The Authors Guild argued that ruling marked an expansion of copyright principles. The organization contended that even if Google's digitization project offered benefits, the initiative still wasn't allowed under the copyright law.

"If Congress believes Google’s actions are socially beneficial, it can enact a statutory licensing scheme," the Authors Guild said in its petition seeking review.

The American Society of Journalists and Authors sided with the Authors Guild, arguing that people were reading Google's snippets instead of purchasing books.

"One ASJA author has learned that her textbook was being used for a class at a well-known university," the organization said in a friend-of-the-court brief filed in February. "The students in the class banded together, purchased one copy of the book, and then each student in the group used terms in the purchased copy to search different terms on Google 'snippet view.' By doing this, they were able collectively to obtain nearly the entire book."

Google countered that the Authors Guild never proved in court that its members lost any revenue due to the project. "The individual petitioners admitted in depositions that they have not lost sales or that they are unaware of any harm to sales from Google Books," the company said in its court papers.

A Google spokesperson stated Monday that the company is "grateful" for the Supreme Court's move. The spokesperson added that Google Books "acts like a card catalog for the digital age by giving people a new way to find and buy books while at the same time advancing the interests of authors."

University of Maryland law professor James Grimmelmann, who followed this case closely, suggests the Authors Guild's lawsuit was misguided. He says Google Books isn't a cause of lost revenue, because "the people who are satisfied after doing a search weren't going to be book buyers anyway."

"Google was a convenient scapegoat for larger trends wracking the publishing industry," he says in an email to MediaPost. "The tragedy of this suit, from the authors' perspective, is that all the attention the Authors Guild paid to Google Books took time and attention away from issues that much more directly affected authors' royalties: publishing contracts and the Apple/Amazon fight over the agency model." (In 2010, Apple conspired with five major publishers to stop Amazon from charging just $9.99 for electronic versions of new releases and bestsellers; the Authors Guild supported Apple in litigation stemming from the conspiracy.)

Others who rely on fair use will likely argue the decision supports them, predicts Internet legal expert Venkat Balasubramani. "It will be a benchmark against which fair use is measured, especially in the 2nd Circuit," he says. "A lot of fair-use proponents will cite it liberally."

At the same time, he says, judges faced with copyright disputes often look at highly specific facts when making decisions about whether activity is protected by fair use.

Eric Goldman, a law professor at Santa Clara University, adds that the Authors Guild "spent 10 years and a boatload of money to achieve nothing."

"Not only did they lose spectacularly in court, but they helped establish a major fair-use precedent that will benefit a wide variety of copyright users," he says in an email.

The 2nd Circuit -- which covers New York, Vermont and Connecticut -- currently has other battles over digital copyright on its docket, including a lawsuit brought by Fox News against online monitoring service TV Eyes.

TV Eyes, which allows paid subscribers to search for, view and download clips from news shows, recently asked the 2nd Circuit to rule that the company's entire business model is protected by fair-use principles.