How does the recent Google Books "fair use" decision impact owners of music, video, and other non-book content?

JD Supra Perspectives

"Under the district court’s reasoning, all of this copying, distribution and display would be perfectly legal. And yet, my guess is that organizations like the MPAA and RIAA would be up in arms..."

There’s no question that Google’s massive book digitization project has enormous social benefits. Researchers and students are able to find and analyze relevant information more quickly than ever before, authors and publishers can obtain new audiences for overlooked or forgotten works, and the public has gained unprecedented access to a vast repository of the world’s knowledge. Of course, it would be disingenuous to extoll the virtues of the project while forgetting that Google didn’t ask for permission to copy the books needed to achieve any of this.

Of course, under the district court’s holding, it didn’t need to.  By upholding Google’s fair use defense, the court immunized and excused unpermitted copying on a massive scale. And while the court focused on the fact that Google’s book search results display only “snippets” of the works, this required Google to scan the entirety of each book.

Some people have noted that there isn’t much of a difference between what Google did and the indexing and search functions employed by large search engines (i.e., Google). And put in this light, it seems quite reasonable.  But I suspect that the reaction wouldn’t have been quite the same had Google, instead of scanning books, decided to rip and store full copies of every motion picture, television show and record album ever made into one massive library.  Users would be able to immediately call up a precise song snippet, movie quote, or TV scene with a few keystrokes.  Under the district court’s reasoning, all of this copying, distribution and display would be perfectly legal. And yet, my guess is that organizations like the MPAA and RIAA would be up in arms, and would liken the new service to a more insidious version of YouTube, with the content being provided by Google itself instead of uploaded by users.
I’m a big fan of technology and innovation, but we shouldn’t forget that digital is digital, and if we’re talking about search engines, out of print books, and orphaned works, this means we’re also talking about high definition movies and the latest-season TV episodes. Just something to think about as we continue to work on striking the right balance between social utility and corporate profit.


[Aaron Moss, partner at Greenberg Glusker, handles a variety of entertainment litigation, intellectual property and general commercial matters, specializing in protecting the rights of owners and users of creative works.

JD Supra's new Law Matters series asks experts for their quick take on legal developments of the day, and specifically how such matters affect people in their personal and professionals lives. Stay tuned for other posts in the series.]


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