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On Friday, the 2nd Circuit Court of Appeals weighed in an a long-running dispute over Google’s efforts to scan tens of millions of books.
In an important ruling that will expand the boundaries of fair use, the federal appeals hands the search giant a victory over the claims of copyright holders who insisted that the “Google Print” and “Library Project” went too far.
“Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interest in the original works or derivatives of them,” states an opinion written by 2nd Circuit judge Pierre Leval.
The lawsuit was filed by the Authors Guild in 2005, a year after Google announced it was working with major libraries on a significant scanning project. At one point, the parties came to a $125 million settlement, but it was rejected by the judge as unfair to class members. The Association of American Publishers then came to their own settlement, and Google made changes to the project by making a smaller portion of books available for consumption online (with the rest available for purchase) and removing scanned books upon request. Book authors pushed forward with their own copyright claims.
In November 2013, U.S. Circuit Court judge Denny Chin granted Google’s motion for summary judgment and spoke about the public benefit of what Google was doing, writing how “Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books.”
The case then went up on appeal, where it has been closely watched with the Motion Picture Association of America, practically every labor guild representing authors in media and entertainment, and consumer groups weighing in. Since being heard by the 2nd Circuit last December, the dispute has only grown in importance with the television industry experiencing its own version of the book-scanning case in Fox’s legal war with the media monitoring service TVEyes.
Today, the 2nd Circuit looks at two main aspects of “Google Print”: allowing users to search a book’s text and allowing users to view snippets. The appeals court weighs that against the authors’ contention that Google has usurped their opportunity to license these markets, and that Google has its own profit motivation. Analyzing these arguments in the context of the four factors that make up fair use — the purpose and character of 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 federal appeals court comes to the conclusion that the good outweighs the bad, that the limits of copyright authority must make way to public benefit. And along the way, the appellate court makes observations that could impact current and futures disputes like search and snippet functions not being recognizable derivative work rights.
In sum, Leval writes, “The purpose the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use.”
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