The Google Books litigation is currently before Judge Denny Chin of the 2nd Circuit. I had the pleasure of meeting Judge Denny Chin at a Harvard APALSA (Asian Pacific American Law Students Association) function while I was in law school. It will be not only interesting to see how Judge Chin rules on the case and the ruling will have implications for authors everywhere. The Authors Guild and ASMP (American Society of Media Photographers) sued Google on a class action basis and Judge Chin refused to dismiss the case based on lack of associational standing, certifying the class and allowing the case to continue. Google’s main defense is fair use.
Basically Google scanned entire books for their Google Books (also known as Google Library) project, the content of which is digitally searchable. So far Google has scanned over 12 million books and delivered digital copies to local libraries. Some of these books are still protected by copyright. Google did not pay any permissions or licenses to scan these books and make the content searchable. However, only snippets of the text are available to see based on any one search. The snippets are basically sentences before and after the search term. No more than a few sentences are revealed at any one time.
“To prove direct infringement, a plaintiff must first prove that the defendant copied the protected work. Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003) (“the plaintiff must show ownership of the copyright and copying by the defendant.”); see also LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 1996). The two prima facie requirements for copyright infringement are: (1) ownership of the allegedly infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright holders.” Id., from http://ilt.eff.org/index.php/Copyright:_Infringement_Issues
Judge Chin’s most recent opinion characterized Google’s actions as “sweeping and undiscriminating.” Additionally, Judge Chin explained that when Google copied the books:
“it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting “snippets” of a particular work would constitute “fair use.” It copied and made search results available en masse. Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually and assert rights in a separate action. Because Google treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis.” (From: http://blog.authorsguild.org/wp-content/uploads/2012/06/2012-May-31-Authors-Guild-v-Google-Class-Cert-Opinion.pdf)
Because judges have discretion to determine if there is fair use, based on the four factors below, it is ultimately up to Judge Chin to decide if Google has a defense.
Four Factors to Determine Fair Use:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
The litigation has dragged on since 2005 and you can bet that it will be at least another year or so before the Court comes down with a decision. I hope Google has some stellar attorneys because it’s going to be hard to argue fair use. Although Google will likely contend that the searches are not wholesale copying because only a snippet is taken and that the purpose of the use is educational, which historically confers broader protection, one could, if he was resourceful enough, find a way to copy most if not all of a book using the searchable content database. True, this would be very cumbersome. But copying a whole book is not necessary, even copying a page or more of a copyrighted book can constitute infringement. One thing is certain though, I’ll be following this case.