Finding Google Books 'Transformative,' Judge Rejects Lawsuit

, New York Law Journal

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Google's mass-copying of copyrighted works to build a digital library of more than 20 million books is shielded by the fair use doctrine, Judge Denny Chin (See Profile) ruled yesterday.

Granting summary judgment to the search engine giant and its Google Books initiative, Chin said the copying and presentation of "snippets" of works that appear when an Internet user enters search terms does not violate the Copyright Act because the use is "transformative" and provides "significant public benefits."

After eight years of litigation, extensive motion practice and even a settlement rejected by the court as inadequate, Chin dismissed the case of The Authors Guild v. Google, 05-cv-08136.

Chin, a Second Circuit judge who retained his role of trial judge in the case, analyzed the factors in §107 of the Copyright Act and found that Google's use of the copyrighted works was "highly transformative."

"Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books," he said. "Google Books has become an important tool for libraries and librarians and cite-checkers as it helps identify and find books."

The judge said the project "greatly promotes" data or text mining by, for example, permitting "humanities scholars to analyze massive amounts of data."

"Words are being used in a way they have not been used before," he said. "Google Books has created something new in the use of book text—the frequency of words and trends in their usage provide substantive information."

An important point for the judge was that "Google Books does not supersede or supplant books because it is not a tool to be used to read books."

While commercial use of copyrighted books can militate against a finding of fair use, it does not in this case, he said, because "the fact is that Google Books serves several important educational purposes."

He said "Google Books expands access to books" for underserved populations, it "helps to preserve books and gives them new life," and it benefits authors and publishers by allowing searchers to easily click on a link that will allow them to buy the book.

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."

Also appearing for amicus in favor of a finding of fair use led by the American Library Association was Jonathan Band of Jonathan Band PLLC in Washington, D.C.

The plaintiffs are represented by Michael Boni, Joshua Snyder and John Sindoni of Boni & Zack in Bala Cynwyd, Pa.; Edward Rosenthal and Jeremy Goldman of Frankfurt Kurnit Klein & Selz and Sanford Dumain of Milberg LLP.

Paul Aiken, executive director of the Authors Guild issued a statement saying the guild would appeal.

"This case presents a fundamental challenge to copyright that merits review by a higher court," Aiken said. "Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitalization and exploitation far exceeds the bounds of fair use defense."

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