Second Circuit Hears Argument in Authors Guild v.Google Fair Use Case

A three-judge panel from the Second Circuit, composed of Judges Leval, Cabranes, and Parker, heard arguments from both parties last Wednesday in the Authors Guild, et al.v. Google, Inc. case, docket number 13-4829-cv.

Since 2004, Google has been scanning entire copies of books held in several research libraries, among them the New York Public Library and the University of Oxford library, as part of its Google Books Library Project. Some of the books scanned are published online in their entirety, while only snippets of some other books are published. The Google Books Library Project is a searchable database of all these scanned books, and Google users can search it using queries.

As such, as noted by Judge Denny Chin in his decision which Appellants seek to reverse, it “provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases”and it is even“taught as part of the information literacy curriculum to students at all levels.” It also allows researchers to study “how literary style has changed over time.” Also, “traditionally underserved populations will benefit as they gain knowledge of and access to far more books.”

OK Judge Chin, but digital libraries are not as comfortable as this one

Most of these books are out-of-print. Some books are in the public domain, whereas others are still protected by copyright. Google did not, however, ask the copyright holders’ permission to scan the books.

The Authors Guild, Inc., which is the largest organization of published authors in the U.S., has for its mission to advocate for and support the copyright and contractual interests of published writers. It filed suit against Google in the Southern District of New York (SDNY) in September 2005 for copyright infringement. Google claimed fair use as a defense, 17 U.S.C. § 107.

Under this federal law, “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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.”

The parties entered into a proposed settlement, but it was rejected by Judge Chin in March 2011 on the grounds that it was not fair, adequate, and reasonable. The parties continued their discussions, but could not reach a new agreement, and the suit proceeded.

In November 2013, Judge Chin granted Google’s motion for summary judgment, finding that Google’s use of the works was “highly transformative.” Since the 1994 Campbell v. Acuff-Rose case, courts are likely to weigh in favor of fair use if the use of a protected work is transformative. This means, as explained by the Supreme Court in 1994, that this is what differentiates a work which merely supersedes the original work and thus supplants the original, “or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message” (Campbell at 579).

Appellants filed an appeal of this decision on December 23, 2013 in the Second Circuit, and the case is pending. Many organizations have filed amicus briefs on behalf of the Appellants or the Appellee, as the crux of the case is the very definition of fair use. Appellant is arguing that to be transformative, a fair use must add new creative expression (see Electronic Frontier Foundation brief p. 30).

A transcript of yesterday’s arguments is not available, but the press has been reporting that Appellant’s attorney emphasized Google’s commercial nature, calling the project“quintessentially commercial in nature.” But Judge Pierre Leval answered that the attorney would not be successful if arguing that Google’s commercial nature precludes fair use. Judge Leval was quoted in this article as saying that “the classic fair use cases are commercial. I would be surprised if you’re going to win this case by pleading that Google, like the New York Times, is profit [oriented].”

Appelant’s attorney also argued that the Google project deprived authors of a potential market to license their works for inclusion in a searchable database. But Judge Leval answered that what matters the most is whether the use of the work is transformative, not that somebody may pay for that use in the future. Let’s note that Judge Leval is the author of the seminal article on fair use, published in 1990, which had influenced the Campbell Supreme Court decision.

Google’s attorney argued that the Project promotes the progress of the sciences and useful arts, pursuant to the Copyright Clause of the US. Constitution. No date has been yet announced for the publication of the Second Circuit‘s decision.

For more articles about the hearing see here, here, and here.

Image  is courtesy of Flickr user Kevin Anderson under a CC BY-NC-SA 2.0 license.