US District Court rules in favour of Google in book-scanning dispute

by DLA Piper

Google has been successful in the latest round of an eight-year copyright dispute with the US Authors Guild in relation to Google’s decision to scan more than 20 million books from libraries and make them available on the internet.

In 2005, the US Authors Guild (and some US publishers) brought a case against Google, alleging that its proposal to establish a digital library, called “Google Books” constituted copyright infringement. However Google stated in its defence that its treatment of the works was “fair use” as they only placed excerpts of texts online.

In a ruling issued on Thursday 7 November, US Second Circuit Judge Denny Chin, sitting as the District Court Judge, granted summary judgment for Google, finding that the book scanning constituted fair use as it was “highly transformative,” giving “out of print and old books that have been forgotten in the bowels of libraries” a new purpose and that it did not harm the market of the original works. Additionally, Chin stated that Google “does not engage in the direct commercialization of copyrighted works” rejecting the notion that Google was depriving authors of income. Rather, the service aided readers to discover new books and could be expected to boost rather than reduce book sales. Moreover, Google does not sell scans or make whole copies of books available. The judge stated that Google takes precautions to prevent people from viewing complete copies of the books online by keeping some snippets from being displayed.

Chin found that, when applying the four fair use considerations in Section 107 of the U.S. Copyright Act, title 17 of the United States Code, Google Books delivered, “significant public benefits” and found that the scanning, “advances the progress of the arts and science,” maintains “respectful consideration for the rights of authors and other creative individuals“, “has become an invaluable research tool,” “preserves out-of-print books” from physical decay, “facilitates access to books for print-disabled and remote or underserved populations” and “generates new audiences and creates new sources of income for authors and publishers.”

This is a significant development in the long-running dispute between Google, the US Authors Guild and US publishers. Between 2008 and 2009 a $125 million settlement was agreed but in March 2011 Chin issued a ruling rejecting the settlement, stating that it raised antitrust and copyright issues by granting Google a “de facto monopoly” to copy books. This resulted in US publishers  negotiating with Google separately and they reached an agreement in October 2012; the financial terms were not divulged.  

In May 2012 Chin gave the authors permission to bring a class action as a group. However, in July 2012, the 2nd US Circuit Court of Appeals found that Chin was premature in endorsing a class action before assessing the fair use defence.

In a public statement, Google stated that “Google Books is in compliance with copyright law and acts like a card catalog for the digital age.” The US Authors Guild will have the option to appeal to the higher court of the Second Circuit and  Paul Aiken, executive director of the Authors Guild stated that an appeal is planned as, according to them, “Google made unauthorised digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying these works… such mass digitization and exploitation far exceeds the bounds of the fair use defence.”


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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