Google Books legal epic moves to appeals court

Google won at the district court level last week, but the Authors Guild isn't giving up

After almost a decade of litigation, Google scored a victory last week over the Authors Guild, which had sued the company for copyright infringement over its Google Books search engine. But a few important chapters in the legal saga have yet to be written.

The Authors Guild will appeal last week's decision from the Southern District of New York, which concluded that Google Books is protected by the fair use doctrine. Legal experts are sharply divided over the decision, with some seeing it as common sense and others puzzled by it.

"I was surprised. I wasn't expecting this outcome," said Hillel Parness, an intellectual-property litigation partner with Robins, Kaplan, Miller & Ciresi in New York, which filed amicus briefs with the court supporting the Authors Guild.

Meanwhile, Jonathan Band, a Washington, D.C., attorney whose client the American Library Association backed Google, said the decision was expected and consistent with fair use rulings. "I was pleased with the decision," he said.

The basic facts aren't in dispute: Google has scanned more than 20 million books provided to it by libraries, stored them on its servers and made their full text searchable on Google Books. It has also provided digital copies to the libraries.

Google never sought permission for the service from copyright owners, and it was sued in 2005 by the Authors Guild and by the Association of American Publishers, which later settled with the company.

Google's defense has been that its search results only display "snippets" of text from books that it copied without permission, but the Authors Guild argues that the company violated copyright law.

In his decision last week, Judge Denny Chin said that Google's use of the copyrighted works was protected for several reasons, chief among them that it helps "advance the progress of the arts and sciences."

Its use of the copyright works is also "highly transformative," according to Chin, which is another standard for fair use. It implies the finished product adds something new that was not found in the original work. Google Books turns the text into "a comprehensive word index," Chin wrote, that helps readers, scholars and researchers find and identify books.

At the same time, the service doesn't supplant the books because it can't be used to read them, he found. As well as showing only snippets of text, it blacks out portions of books from appearing in results so that the system can't be gamed, according to the judge.

But Parness finds it problematic that to maintain its service, Google must maintain exact, persistent copies of the books on its databases. "The judge focuses on the snippets instead," he said.

Chin should have addressed this issue more at length in his decision, Parness said, and not given so much weight to the benefits of Google Books as a reason for justifying the copying.

"The suggestion is that if a particular unauthorized use of copyrighted materials becomes 'essential' or 'important' to society, the fact that it was brought about by brazen, unapologetic copying becomes far less important," Parness said via email.

"It gives rise to the dangerous idea that allowing society to become accustomed to -- or even reliant upon -- such widespread commercial copyright infringement will damage the ability of the rightsholders to obtain relief," he said.

But Band argued that it's common in fair use cases to give weight to the societal benefits. "That was exactly the right way to view this issue," he said.

Eric Goldman, a professor at Santa Clara University School of Law, said the case could potentially establish important precedents. But the appeals process must first be exhausted, which could mean waiting for a Supreme Court decision, if the case makes it that far.

In addition, fair use cases tend to have limited implications for case law because they usually involve facts and circumstances specific to their situation, said Goldman, who has filed briefs in this case over the years, at times in favor of Google and at other times against it.

Chin seems to have taken into account specific elements that helped Google. For example, he remarked in his decision that Google "does not engage in the direct commercialization of copyrighted works" and that the company took steps to prevent people from viewing large amounts of copyright text. The judge also said that Google Books benefits authors by making their books easier to discover, and helps them with sales by providing links to online stores that carry the titles.

If Google had pursued more direct and aggressive monetization strategies via prominent ads displayed on Google Books search result pages, the judge might have ruled differently, according to Goldman. "Even minor changes in fact can alter the equities of a [fair use] case," he said.

This means another company shouldn't assume it can build a Google Books competitor and be automatically shielded from an Authors Guild lawsuit, he said.

Band concurred. "It's easy to overstate the importance of the case," he said, noting that the judge took into account that Google and its library partners "have acted very responsibly and in a way that's very respectful of the rightsholders." In particular, Chin couldn't have been convinced that Google Books hurt authors by usurping their sales, Band said.

It's possible that as a result of the district court decision, there will be more investment and innovation in search services for other types of works, according to Matthew Schruers, vice president of law and policy at the Computer & Communications Industry Association (CCIA), which supports Google, one of its members.

"We already know that copying and indexing web content was fair use, because of its transformative nature in enabling Internet search that we all rely upon," he said via email.

The Authors Guild was arguing for "book exceptionalism" -- that books shouldn't be considered in the same category as website content, Schruers said. "We now have several cases holding that digitizing works into a database, given the purpose is a transformative one that differs from the market for the underlying works, is fair use," he said. "Courts seem to view this rule as broadly applicable."

The Authors Guild plans to appeal the case to the Second Circuit of Appeals, where incidentally Chin now serves. It's likely that court will hear the case sometime next year. If the case ends up in the Supreme Court, a resolution would likely not occur before 2015.

In a statement last week, the Authors Guild expressed disappointment with the decision and said the case presents "a fundamental challenge" to copyright.

"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 digitization and exploitation far exceeds the bounds of the fair use defense," said Paul Aiken, the group's executive director.

Google, on the other hand, said it was "absolutely delighted" with the decision. "As we have long said, Google Books is in compliance with copyright law and acts like a card catalog for the digital age giving users the ability to find books to buy or borrow," a spokeswoman said via email.

And so, this courtroom thriller will continue next year and possibly beyond.

Juan Carlos Perez covers enterprise communication/collaboration suites, operating systems, browsers and general technology breaking news for The IDG News Service. Follow Juan on Twitter at @JuanCPerezIDG.

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Juan Carlos Perez

IDG News Service
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