As the Supreme Court declined to hear the Authors Guild challenge of Googles Book’s digitizing program on Monday, a legal battle that lasted for over a decade comes to an end. The court’s denial to hear the case will leave in place an appeals court decision that upheld Google’s book scanning program as a fair use of copyrighted works. In its decision not to take up the case, the Supreme Court also avoided making a sweeping ruling on copyright law in the digital age.

“Today authors suffered a colossal loss,”Authors Guild President Roxana Robinson said in a press release after the Supreme Court’s decision. “We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes,” Robinson said of the longstanding legal dispute. But advocates like the Electronic Frontier Foundation (EFF) have strongly supported Google’s project. The EFF concluded, “All in all, it’s a good day for fair use” after the circuit court ruled in favor of Google–the ruling that the Supreme Court’s decision now leaves in place.

Back in 2004, Google undertook an effort to digitize millions of books in order to create a database to help bolster the company’s dominance in the internet search market. Google also argued that it was providing a public service because it would help people discover existing pieces of writing. The project began as a collaboration with libraries to create searchable versions of works in the public domain, but it also expanded to include works currently under copyright.

At the heart of the issue is the question of whether or not Google’s project falls under the category of fair use, a legal doctrine that allows for copyrighted works to be used when serving certain public interests. The suit began back in 2005 when the Author’s Guild took issue with Google’s digitization project, arguing that the company would illegally take away authors’ profits. The case became a class action effort in 2012 after authors and copyright holders came together to challenge Google.

The Authors Guild’s primary issue with Google’s program is that the company did not seek out permission from the copyright holder before digitizing their work and making the contents searchable online. Although Google did not make the full text of copyrighted works available online, it did allow users to search for text within books as well as see a limited sample of the surrounding text. The Authors Guild also argues that allowing Google to digitize authors’ books without permission for its own profit is a clear violation of copyright law.

Google’s profit from the project was a major issue earlier on because the company initially displayed advertising in search results and on individual book’s pages. Although the two parties reached a sort of compromise to share ad revenue, Google eventually ended the program, noting that it wasn’t a major source of revenue. The two sides nearly settled the entire case back in 2011, but a New York district court judge rejected it, arguing that the arrangement would have given Google a de facto monopoly.

After rejecting the settlement deal, the New York district court ruled in favor of Google, saying that the way Google digitized and uses the books in its search engine constitutes a transformation in the context of fair use. In his opinion, which issued summary judgment to Google dismissing the Authors Guild complaint, Judge Denny Chin ruled in favor of Google, saying that its project

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

After the district court ruling, the Authors Guild appealed to the U.S. Court of Appeals for the Second Circuit, which also ruled in Google’s favor. Ultimately, the Guild appealed to the Supreme Court, but after its decision not to take up the case on Monday, Google Books will now remain intact.

The court’s decision also reflects a reluctance to issue a major ruling on fair use in the age of the internet. The authors involved in the lawsuit claim, “the internet was not anticipated” when modern copyright law was written back in the 1970s and that the court needed to settle the issue. In light of the recent decision, we’ll likely have to wait for another high-profile case to make its way to the Supreme Court before to get a better understanding of the relationship between copyright law and the internet.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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The United States Court of Appeals for the Second Circuit recently heard oral arguments about the long-fought Google Books case between Google and the Authors Guild.

This case has been trudging through the courts for nearly a decade. In 2005, the Authors Guild and the Association of American Publishers (AAP) separately sued Google on claims that it violated their respective copyrights on the Google Books database. Google claimed, however, that its database was a fair use.

The lawsuits were then consolidated, but AAP eventually settled out of court with Google. The Authors Guild continued its lawsuit against Google but later agreed to settle for $125 million. The Authors Guild and Google tried to amend their settlement, but the settlement was rejected.

Around this time, the Authors Guild filed a similar lawsuit against HathiTrust but lost on summary judgment.

Nevertheless, the Authors Guild/Google lawsuit carried on into federal court, but the Authors Guild met a similar fate as it did against HathiTrust and lost to Google via summary judgment last year.

According to Publishers Weekly, Google won its summary judgment motion partly because of its fair use argument. The court favored Google in three out of the four fair use factors. The four fair use factors are 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use on the potential market. Google won on the first, second, and fourth factors because its scanning was a transformative use, 93 percent of the scanned works were nonfiction, and Google didn’t sell the books it scanned although it benefited financially from the web traffic caused by Google Books.

The Authors Guild then appealed to the Second Circuit.

Oral Argument

Andrew Albanese writes that the Authors Guild tried to differentiate the Google Books lawsuit from the HathiTrust lawsuit by arguing that Google Books was a commercial use, but the Second Circuit shot that argument down. Judge Pierre Leval said that transformative use was what mattered the most–the first factor. The Authors Guild also argued that Google should not be allowed to profit from its database of unlicensed works, and that Google Books differed from HathiTrust because Google Books offered snippets of the works, whereas HathiTrust did not display the works made available via searching.

Google argued for fair use and asserted that Google Books progressed the arts and sciences. Moreover, Google argued that Google Books created no market harm. Although users flock to Google because of Google Books, Google Books serves an educational purpose.

The Second Circuit did not mention when it would render a decision.

Analysis

Considering the court dismissed the Authors’ Guild argument that Google and HathiTrust could be distinguished via the first fair use factor, the Authors Guild has a tough challenge in attempting to reverse the district court’s decision in favor of Google. I have not listened to the oral argument, but by reading Albanese’s aforementioned article, it does not look good for the Authors Guild.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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The road to the Google Books Library Project was paved with good intentions. Equalize the reach of books to anyone with Internet access. Oh, and make the books free. Knowledge for the people.

But somewhere beneath this pavement there was a hitch — copyright law.  A lot of the books that were digitized for public access were under copyright. However, I must note that the scanned books were only available in snippets and wholly scanned so that they could be researched through the Project’s online card catalogue. Is this a violation of copyright law or is it fair use?  At first glance, I thought this was quite clearly copyright infringement, but upon deeper exploration I had to agree that the Google Books Project could be interpreted as transformative. But here’s how I really feel: it’s a stretch and I don’t respect it.

Let’s explore how the suit against Google has been unfolding.

On December 23, the Authors Guild, a coalition that aims to promote the copyright protection of written works, announced their intention to appeal the dismissal of their lawsuit against Google.  The suit centered on the notion that Google was infringing on the copyrights of numerous authors by scanning more than 20 million books for the Google Books Project without the authors’ permission. Though the Project’s stated purpose is to “make it easier for people to find relevant books while [also] respecting authors’ and publishers’ copyrights,” the contested point here is this: when does fair use cross the boundary into infringement?

Because I thought that blatantly copying another’s entire work without their permission would be an obvious case of infringement.

The suit was initially filed more than eight years ago and was abruptly dismissed by a New York Circuit judge on the basis that the Project doesn’t actually harm the creators of these written works. Granting a summary judgment motion in Google’s favor, the judge referenced the defenses of fair use and transformation. He made a point to factor in the educational purposes fulfilled by the Project in his determination that the Project was transformative. Ok. Sure.

I guess you could say that taking anothers’ works and printing them verbatim for your own use hidden by the pretext of ‘education for all’ would transform your creation into something new. Sure. Like I said, there are definitely some good intentions here, and I’m all for wider dissemination of book content. But I’m just not buying why these authors shouldn’t be compensated or why their permission isn’t needed.

Does anyone remember the Harry Potter case? Five years ago, someone attempted to create a Harry Potter encyclopedia for pretty much the same purpose as Google Books – to make information easier to find. However, in that case, the judge ruled that while the online guide was slightly transformative because it put all of the terms into one source, it still didn’t satisfy the defense of fair use because of the amount of verbatim text taken from the Harry Potter books. Is Google not doing the exact same thing?  Are they not copying the books verbatim and offering them to the public without author compensation or permission? Who is Google to determine the appropriate amount of content to freely display to the public?

Which brings me to my next question — does Google win merely because they are Google?  These books were created to entertain, to educate, and to bring forth whatever purpose the author may have fathomed. So in my opinion, the only new purpose that Google is adding is dissemination. I guess now we can take entire books and create our own educational or research-related excuse for stealing them and have the courts deem it a “transformation.” Google shouldn’t be allowed to decide the amount of content that can be utilized in creating this reference bank — the authors should. And the authors should’ve been given a voice throughout the Project’s entire creation.

I truly appreciate what Google Books stands for as far as enlarging the audience for these books and making intellectual power more easily obtainable. I just don’t understand why Google, with their absurd amount of wealth, couldn’t settle with the authors who created the information they wish to share — even after eight years! This case is nothing more than a power play by Google to remind us who’s in charge.

The Google Books Project should exist, but not without compensation to those who built it. Compiling information is not the same as creating it.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Aray Chen via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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It seems as if Google is always caught in the midst of a lawsuit. This time, has Google gone too far? Judge Denny Chin doesn’t think so.

Over the past eight years, Google has been in constant conflict with the Authors Guild, the not-for-profit American organization of and for authors, arguing the legality of Google Books.

Google Books, formally known as Google Print, is a revolutionary technology, initially introduced at the Frankfurt Book Fair in October 2004, that compiles millions of full-text books and magazines for public use.

Since the inception of Google Books, not much has changed. The documents continue to be scanned and converted into text through a process called optical character recognition where they are finally stored in a digital public database for users all around the world to use.

This has been an excessively drawn out copyright fight between juggernaut Google and the Authors Guild. And now, it is finally over, as Judge Denny Chin ruled in favor of fair use as it is something that benefits the masses. So as long as it benefits the masses, should it be partially free? (Healthcare anyone?) 

John Locke is probably turning in his grave right this instant.

John Locke, an english philosopher and physician, unequivocally believed in the idea of private property. If you create it, you claim that territory, conceive an idea, it is all yours—a sacred western value that the United States treats very seriously.

The ruling on Google Books completely turns this idea on its head. Furthermore, this is a landmark case because it could create a precedent for future court cases when it comes to copyright law.

Judge Chin’s overarching argument is that Google allows readers to discover books, therefore it will bring new income to the readers.

Judge Denny Chin made the ruling based on the fact that Google’s digitization of the source material is “highly transformative” and won’t interfere with the original market.

Now, this case is much bigger than it actually seems. On the surface, Judge Denny Chin’s decision seems great, enabling the world access to more than 20 million books. Unfortunately, this ruling utterly decimates the idea of copyright.

Copyright is a legal concept that gives the creator exclusive rights and protection over original works of authorship, ranging from literary artistic, and musical intellectual works. The author alone has the right to replicate, distribute, perform or display copies of his or her work.

This court case may be appealed as the judge basically ruled that as long as it benefits the masses, copyright really isn’t much of an issue. It renders everything copyright stands for utterly useless.

Will this court case be appealed? Probably. As of now, this “essential research tool” is available for everyone to use.

[Business Insider] [Gigagom]

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Featured image courtesy of [Lin Kristensen via Wikipedia]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

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