The Google Book Search is a “highly transformative” fair use, according to an opinion issued today by the District Court in the long-running Authors Guild v. Google case. Judge Denny Chin granted summary judgment to Google on the the issue of fair use, citing amicus briefs from library associations and digital humanities scholars multiple times. The Authors Guild has already announced its appeal. The Second Circuit panel that will be hearing the appeal indicated in an earlier appeal that they thought this was a likely fair use.
- the Court determining that the search index was “highly transformative”;
- repeated citations to the amicus briefs by the library associations and the digital humanities scholars;
- a specific holding that the copies that Google gave to libraries were also fair use, because they permitted fair uses by the libraries (in other words, HathiTrust-type uses); and
- direct citation to the HathiTrust case, which I am hopeful will create a certain synergy for that appeal.
Two points that I think will be quite helpful going forward on issues include (1) the explicit consideration in the fourth factor (the “effect on the market” factor) of the benefits to authors of discoverability; and (2) the court’s assessment of Google’s “commerciality” in the first factor — although Google is a commercial actor, “[i]t does not engage in the direct commercialization of copyrighted works.” That’s a very useful gloss on “commerciality” versus “nonprofit”, which helps limit commerciality to commercial use of the works — as opposed to the profit or non-profit status of the defendant.
The Authors Guild has already announced they are appealing. The appeal will be held in the Second Circuit, and we already know the panel — which heard the earlier class certification appeal and indicated at that time they thought this was a likely fair use.
Read the actual opinion — it’s not too long, it’s a nice overview of the 8-year Google Books litigation, and it’s a classic fair use analysis with nothing too weird or difficult.
- Authors Guild v. Google (SDNY 2013/11/14)
- Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google
- Brief of Library Associations and the Electronic Frontier Foundation as Amici Curiae in Authors Guild v. Google
- Authors Guild, Round One to Google: Judge Chin Finds Mass Book Digitization a Fair Use. Guild Plans Appeal. (Nov. 14, 2013)
- Annemarie Bridy, A Good Day at the Googleplex (Freedom to Tinker, Nov. 14, 2013) (“The opinion is an efficient and complete analysis of the required factors, and I think it will hold up well on appeal.”)
- Brandon Butler, Google Books Decision A Huge Victory for Fair Use and for Research Libraries (ARL Policy Notes, Nov. 14, 2013)
- Kenneth Crews, Google Books: Fair Use and Public Benefits (Nov. 14, 2013)
- Eric Goldman, Why Google’s Fair Use Victory in the Google Books Suit Is a Big Deal, and Why It Isn’t(Forbes, 2013/1/14)
- Ariel Katz, You’re in Good Company, Judge Chin (Nov. 14, 2013)
- Timothy B. Lee, Google Books ruling is a huge victory for online innovation (Washington Post, Nov. 14, 2013)
- Julie Bosman & Claire Cain Miller, Judge Sides with Google on Book Scanning Suit (New York Times, Nov. 14, 2013)
- Matthew Sag, Google Books held to be fair use (Nov. 14, 2013)
- Nancy Sims, Google Books suit dismissed: more affirmation of public interest in copyright (Nov. 14, 2013)