Google Books Copyright Case
The Google Books copyright case centers on several copyright infringement cases filed by the American Association of Publishers (AAP), the Authors Guild, and others against Google for digitizing, indexing, and providing search access to the public of millions of library books.
Since the lawsuit was initially filed in 2005, numerous actions have occurred. The AAP, the Authors Guild, and Google proposed an initial settlement in 2008, but after privacy, antitrust, and other concerns were expressed by numerous parties, including the US Dept. of Justice, the settlement proposal was rejected by the court (Judge Chin). In 2012, after continuing negotiations to reach a revised settlement fell through, the AAP settled separately with Google, in an undisclosed settlement that reportedly appears to be largely a concession by the publishers. The Authors Guild has continued its litigation, and in 2012 won certification as representative of a very broad class of authors. In 2013 the Second Circuit reversed the class certification, and sent the case back to the District Court on the issue of fair use. On November 14, 2013, the District Court (Judge Denny Chin) held that the Google Books index was a "highly transformative" fair use, and granted summary judgment for Google on the question. (See opinion (PDF).)The Authors Guild immediately announced that they would appeal.
- Nov. 14, 2013 - Big win for fair use. See opinion (PDF).
- Aug. 1, 2012 - Library Copyright Alliance files amicus brief arguing that digitizing books in order to index and make them available for searching is a fair use. See LCA brief (PDF).
- Oct. 4, 2012 - Announcement about AAP Settlement.
- Electronic Frontier Foundation (EFF), Authors Guild v. Google, relating particularly to privacy concerns in the 2008 proposed settlement, and addressing other aspects of the litigation.
The Google Book Search is a "highly transformative" fair use, according to an opinion issued today by the District Court in the long-running Authors Guild v. Google case. Judge Denny Chin granted summary judgment to Google on the the issue of fair use, citing amicus briefs from library associations and digital humanities scholars multiple times. The Authors Guild has already announced its appeal. The Second Circuit panel that will be hearing the appeal indicated in an earlier appeal that they thought this was a likely fair use.
- the Court determining that the search index was "highly transformative";
- repeated citations to the amicus briefs by the library associations and the digital humanities scholars;
- a specific holding that the copies that Google gave to libraries were also fair use, because they permitted fair uses by the libraries (in other words, HathiTrust-type uses); and
- direct citation to the HathiTrust case, which I am hopeful will create a certain synergy for that appeal.
Two points that I think will be quite helpful going forward on issues include (1) the explicit consideration in the fourth factor (the "effect on the market" factor) of the benefits to authors of discoverability; and (2) the court's assessment of Google's "commerciality" in the first factor -- although Google is a commercial actor, "[i]t does not engage in the direct commercialization of copyrighted works." That's a very useful gloss on "commerciality" versus "nonprofit", which helps limit commerciality to commercial use of the works -- as opposed to the profit or non-profit status of the defendant.
The Authors Guild has already announced they are appealing. The appeal will be held in the Second Circuit, and we already know the panel -- which heard the earlier class certification appeal and indicated at that time they thought this was a likely fair use.
Read the actual opinion -- it's not too long, it's a nice overview of the 8-year Google Books litigation, and it's a classic fair use analysis with nothing too weird or difficult.
- Authors Guild v. Google (SDNY 2013/11/14)
- Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google
- Brief of Library Associations and the Electronic Frontier Foundation as Amici Curiae in Authors Guild v. Google
- Authors Guild, Round One to Google: Judge Chin Finds Mass Book Digitization a Fair Use. Guild Plans Appeal. (Nov. 14, 2013)
- Annemarie Bridy, A Good Day at the Googleplex (Freedom to Tinker, Nov. 14, 2013) ("The opinion is an efficient and complete analysis of the required factors, and I think it will hold up well on appeal.")
- Brandon Butler, Google Books Decision A Huge Victory for Fair Use and for Research Libraries (ARL Policy Notes, Nov. 14, 2013)
- Kenneth Crews, Google Books: Fair Use and Public Benefits (Nov. 14, 2013)
- Eric Goldman, Why Google's Fair Use Victory in the Google Books Suit Is a Big Deal, and Why It Isn't(Forbes, 2013/1/14)
- Ariel Katz, You're in Good Company, Judge Chin (Nov. 14, 2013)
- Timothy B. Lee, Google Books ruling is a huge victory for online innovation (Washington Post, Nov. 14, 2013)
- Julie Bosman & Claire Cain Miller, Judge Sides with Google on Book Scanning Suit (New York Times, Nov. 14, 2013)
- Matthew Sag, Google Books held to be fair use (Nov. 14, 2013)
- Nancy Sims, Google Books suit dismissed: more affirmation of public interest in copyright (Nov. 14, 2013)
You may have heard about the Google BookSearch settlement. (e.g., the NYT: http://www.nytimes.com/2012/10/05/technology/google-and-publishers-settle-over-digital-books.html ). Don't get too excited, because it was the least exciting part of the case that settled -- and the rest of the case continues.
– Laura Quilter
Last Edited: 19 May 2014