updated 11:00 pm EDT, Thu October 11, 2012
Ruling casts long shadow over Google versus The Authors Guild case
The Authors Guild has been dealt a second blow in one week in its legal fight with Google over book scanning. Just days after Google settled with a group of publishers ending one aspect of the battle, Federal Judge Harold Baer of the Southern District of New York has ruled that libraries who have given Google books to scan are protected by the "fair use" doctrine in US copyright law.
Cases are generally determined as "fair use" if they comply in whole or in part with four factors -- purpose and character, nature of the work, amount and substantiality of the portion taken, and the effect of the use on the potential market. Courts have generally argued that "transformative uses" are generally fair.
Judge Baer ruled that the scanning, conversion, and indexing of the materials provides superior search capabilities to the copyrighted material, an example of a "transformative" use. The judge also noted that the scanning program gives blind readers the ability to read the books, something not possible with the original works.
The judge viewed the overall book market as not being impacted by the scanning program. While the authors argued that a finding of "fair use" for Google would impede revenue by selling the right to scan the books, Judge Baer rejected the argument as circular. He quoted a previous ruling, saying that "were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright owner."
Copyright scholar Hames Grimmelmann declared the ruling a "near-complete victory" for the libraries involved in the suit. Also, Grimmelman expects a settlement and thinks that the decision "makes the case seem so lopsided that it makes the appeal into an uphill battle. Perhaps together with the AAP [American Association of Publishers] settlement, this is a moment for a reevaluation of the Authors Guild's suit against Google."
The Authors Guild has asked a higher US Federal Court in New York to force Google to pay $750 per book it scanned for distribution, claiming that Google's effort does not constitute "fair use" under copyright law. Google believes that the book scanning effort "constitutes fair use by allowing users to identify interesting books and find ways to borrow or buy those books, much like a card catalog for the digital age." Google has argued for dismissal of the suit on "fair use" grounds, which this ruling seems to bolster somewhat.
A $125 million settlement was reached in March 2011 between Google and The Authors Guild, but was rejected on legal grounds by Judge Denny Chin, despite his saying publicly that he sees tangible benefits to libraries from both the scanning effort and technology developed to scan the books. Judge Chin said the agreement overreached because it gave Google a "de facto monopoly" to copy books without permission from rights holders, and served to increase its market share in online searches.