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15 November 2013Copyright

Authors Guild’s Google Books challenge dismissed

On November 14, the US District Court for the Southern District of New York dismissed the Authors Guild’s case against Google, allowing the technology company to continue expanding its Google Books online library.

As part of the Google Books project, Google has made ‘snippets’ of 20 million books available to the public.

Many of the books Google digitised were under copyright, and Google did not have permission from the copyright holders to use them. It also had not compensated copyright holders for copying and displaying the books.

The Authors Guild sued Google in 2005 for copyright infringement seeking injunctive and declaratory relief and damages. Google argued that making ‘snippets’ of the works available online constituted fair use, and district Judge Chin agreed.

He said that Google’s use of the copyrighted works is “highly transformative”, that it adds value to the original, and that it does not supersede or supplant books because it is not a tool used to read books.

He added that Google Books provides “significant public benefits”, and that it advances the progress of the arts and sciences while respecting the rights of the authors and copyright holders.

Authors Guild executive Paul Aiken, in a statement on its website, said that the group plans to appeal against the decision.

“We disagree with and are disappointed by the court’s decision today,” he said.

“This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorised digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitisation and exploitation far exceeds the bounds of fair use defence.”

Google said in a statement: “This has been a long road and we are absolutely delighted with today’s judgment.

“As we have long said, Google Books is in compliance with copyright law and acts like a card catalogue for the digital age.”

Paul Fakler, a partner at Arent Fox LLP in New York, said that there was a “troubling trend” in fair use cases where the courts will often focus entirely on the question of transformativeness, which he described as a “mushy” term. However, he said, in this case Judge Chin had made a fair judgment, covered all of the factors and balanced them together.

“Judge Chin does a very good job of concisely explaining the principles and purposes behind the fair use defence,” he said.

He said the decision was notable as Judge Chin originally put aside the fair use issue to deal with the class certification issue. Judge Chin granted the Authors Guild class certification, which Google appealed against.

“Technically, all that was on appeal was the question of whether it was proper to allow this case to proceed as a class action,” he said.

“The Second Circuit panel took it upon themselves to first vacate the class certification and refer the case back to the district court where Judge Chin should decide fair use before the issue of class certification,” he said.

He expects Judge Chin’s decision will stand: “It’s a well-reasoned fair use decision, it cites a lot of precedents that support the outcome, and it doesn’t do anything novel.

“It seems to me that the decision will be pretty safe on appeal but it will nonetheless be interesting to watch,” he said.

Hillel Parness, partner at Robins, Kaplan, Miller & Ciresi LLP in New York, noted that in part of the opinion, it appears the legality of Google Books is presupposed: “As one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books,” the opinion said.

He said that Judge Chin set the table by listing the “many” benefits of Google Books before reaching the question of fair use.

“The suggestion is that if a particular unauthorised use of copyrighted materials becomes ‘essential’ or ‘important’ to society, the fact that it was brought about by brazen, unapologetic copying becomes far less important,” he said.

“It gives rise to the dangerous idea that allowing society to become accustomed to – or even reliant upon – such widespread commercial copyright infringement will damage the ability of the rightsholders to obtain relief.  In that light, one can legitimately ask whether there is any principled difference between the widespread commercial copying that led to peer-to-peer file sharing, and that which led to Google Books.”

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3 July 2013   The US Court of Appeals for the Second Circuit has reversed a court order that would have allowed an association of authors to challenge Google’s online library project, Google Books, as a group.
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1 September 2012   A US authors’ group has demanded that Google pays it $750 for each book the Internet company has scanned without authorisation under its Google Books initiative.
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6 January 2014   The Authors Guild has asked a US appeals court to consider reviewing a ruling from last year in which the Google Books initiative was cleared of copyright infringement.