Finding Google Books 'Transformative,' Judge Rejects Lawsuit

, New York Law Journal

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Chin in 2011 rejected as inadequate a settlement in the case (NYLJ, March 23, 2011).

He then denied Google's motion to dismiss and granted the plaintiffs's motion for class certification in May 2012 (NYLJ, June 1, 2012), but that decision was stayed pending appeal and, on July 1, 2013, the U.S. Court of Appeals for the Second Circuit reversed, saying any determination on class certification should await a resolution of Google's fair use defense (NYLJ, July 2, 2013).

In his opinion Thursday, Chin also denied a motion for partial summary judgment made by the Authors Guild and name plaintiffs in the case, including former Yankee pitcher and "Ball Four" author Jim Bouton.

The judge noted that most of the copyrighted works are non-fiction and are published and available to the public, considerations "that favor a finding of fair use."

The judge disagreed with the arguments made by the plaintiffs that Google Books will hurt the market for books and that its scans will serve as a "market replacement" for books, saying "neither suggestion makes sense."

"Google does not sell its scans, and the scans do not replace books," he said. "While partner libraries have the ability to download a scan of a book from their collections, they owned the books already—they provided the original book for Google to scan."

And, he said, "To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders" as it "provides a way for authors' works to become noticed, much like traditional in-store book displays."

Google is represented by Daralyn Durie, Joseph Gratz, David McGowan and Genevieve Rosloff of Durie Tangri LLP in San Francisco.

Jennifer Urban of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley School of Law was part of a team of lawyers who filed for amicus curiae, a group of digital humanities and law scholars, in favor of a finding of fair use.

"I think it's an absolutely terrific decision," Urban said. "It's a careful fair use decision that explains why new technologies and the ability to digitize physical texts like books supports the societal goals of copyright law."

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