2d Circuit arguments in Authors Guild v. Google

notes to UM5/copyright-l

I attended the Authors Guild v. Google hearing in New York last week. The Second Circuit will issue an opinion, likely some time in the next 6 months would be my guess, and it’s also likely that this will be the dispositive final fair use decision in the Authors Guild v. Google case.

I posted my transcript-style notes on my UMass blog at http://blogs.umass.edu/lquilter/2014/12/10/authors-guild-v-google-notes-from-the-hearing/ .

My briefest summary is that (A) I think it likely that the 2d Circuit will affirm the lower court’s fair use holding; (B) I think it even likelier that if A, then the Authors Guild will file for Supreme Court review but not get it.

Slightly less brief: The panel was comprised of three judges: Leval, Cabranes, and Parker. Parker had written the HathiTrust fair use decision in the 2nd Circuit. Cabranes is famous (not for copyright); and Pierre Leval is a (THE?) rock star of fair use not just on the judiciary but generally. Leval wrote an article that reshaped the entire field of fair use, and gave us the “transformativeness” analysis that is such a large part of fair use these days.

Leval led the questioning and was quite interested in Google’s contracts with the libraries, and how the libraries are using the copies, and whether the copies would be vulnerable to “hacking” in the libraries. My sense is that the core questions of fair use are already resolved, in Google’s favor — the indexing is transformative; the commerciality of Google’s use is irrelevant; the snippet displays and full-text indexing are not too much given the transformative purpose. So the questions the panel was exploring were aimed at uncovering anything that would put a kink in their analysis, or helping them to flesh it out.

Further reading

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