You, too, should celebrate the end of the Google Books litigation
If you felt a vibration in the air this morning, it may have been the final sigh of relief so many of us heaved when the U.S. Supreme Court announced it will not review last fall’s expansive, pro-fair-use appellate court decision in the Google Books case. (Here’s The New York Times‘ account.)
Now, law professors will tell you that when the Supreme Court opts not to hear a case, it doesn’t necessarily mean the court has decided a lower court got the case right. That’s just as true in the Google Books case as it is in any other. Formally, the Supreme Court is simply letting stand a decision by the 2nd U.S. Circuit Court of Appeals which held that Google (now a division of Alphabet Inc.) is acting within the “fair use” doctrine of copyright law when it makes millions of books in university research libraries searchable.
But symbolically, the court’s announcement this morning brings to an end more than a decade of litigation centered on whether the Google Books project, in making millions of library volumes digitally searchable from the comfort of your computer (or phone), was engaged in copyright infringement.
It’s been strenuous to follow that decade of lawsuits. Fortunately the Library Copyright Alliance has given us a helpful “Google Books Litigation Family Tree,” updated to the present day:
(We use it here with permission, of course.)
Last fall, I wrote in Slate on the appeals court decision that led to today’s Supreme Court announcement. Fortunately both for Google Books and for the rest of us, Judge Pierre N. Leval, a copyright-law expert, had previously written a profoundly influential Harvard Law Review article back in 1990 on the theory of fair use under our copyright law. And so it was poetic justice to see Judge Leval craft remarkably clear, readable analysis for the Court of Appeals on of how the doctrine of fair use applies to Google’s longstanding project designed to make research libraries more accessible online. You can find Leval’s decision here as a viewable and downloadable PDF. As I wrote at the time:
The Authors Guild, unsurprisingly, has said it will appeal this latest 2nd Circuit decision to the Supreme Court. But it will be quite surprising indeed if the Supreme Court gives these plaintiffs what they’re asking for, given how the high court has interpreted fair use ever since Judge Leval, in a cautiously noninfringing law review article, seeded the modern transformative evolution of fair use.
