Summary Judgement by New York Circuit Judge  Denny Chin

in case (11/14/2013)

The Authors Guild, Inc., Bett Miles, Joseph Goulden, and Jim Bouton

vs

Google, Inc.

Source link: https://www.eff.org/files/2013/11/14/authors-guild_v_google_fair-use-summary-judgment_copy.pdf

author: Denny Chin, Circuit Court Judge, New York

In 2004, Google started a book scanning project which digitized published works of literature making “snippets” available for viewing through their search engine. The project initially was limited to the volumes contained in the New York Public Library, The Library of Congress, and some university libraries. Google scanned more than twenty million books making them available for search online and provided digital copies to the participating libraries. Google did this without obtaining permission from the owners of the copyrighted works. Judge Chin ruled in favor of Google’s fair use claim and dismissed plaintiff’s motion for partial summary judgment.

The plaintiff’s concern was focused on three key technological points: 1. the works were copied in entirety and stored on several Google servers along with one full digital copy being provided to the library, 2. Google is a for-profit company making money from advertising related to search history. Google obviously enjoys commercial benefit from its Library Project despite not directly placing ads on book searches or selling the digital snippets. 3. The increased availability of popular parts of these books and through repeated searches a large portion of the text diminishes the future marketability of the work.

Google argues (along with the Electronic Frontier Foundation in their Amicus Brief to the court) that the digitizing of books, indexing, and searchable snippets is a direct embodiment of fair use. Google implements security measures to prevent consumers from gaining full access to the digital works. Google argues they have added to the original works by providing a tool to analyze them.

Judge Chin delves into the issue of fair use in more detail explaining how the fair use doctrine from section 107 of the Copyright Act applies to each of the 4 categories and the overall intention of copyright protection, which is “to promote the the progress of science and useful arts.” (16-17):

The fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Judge Chin argues for Google favor of fair use in item #1. Google Library project transforms static text into a very usable and accessible tool for purpose including but not limited to scholarship and research. Google is benefiting commercially from this project but does not directly monetize the copyrighted work because it does not sell the snippets or place advertisements on the searches. Item #2 hinges on the fact that all the books in Google’s Library Project are published works and Judge Chin again favors fair use here. On item #3, Judge Chin gives a small victory to the plaintiff’s case claiming that Google is copying the full works, which is not in their favor of the fair use argument. Finally, on the last point, Judge Chin discounts the plaintiff’s argument that market potential was negatively impacted citing several sources who claim Google Books “helps readers find their work, thus increasing their audiences.” (25).

In the end, Judge Chin makes a strong argument for Google’s fair use claim on the basis of public benefit coupled with the overwhelming fact that Google Books is transformative turning static works of literature into dynamic digital content that is searchable and index-able on the various individual whims of the users.