Authors Guild v. Google, Part II: Fair Use Proceedings

Note: There are two parts for the case page for Authors Guild v. GooglePart I discusses the proposed class action settlement.  This part II discusses the fair use proceedings that followed the court's rejection of the proposed settlement.

Background

The case began in 2005 when the Authors Guild sued Google for digitizing books as part of the Google Book Search program called "Google Print" at the time. Through partnerships with university libraries, Google intended to scan books, index the contents, and provide both library users and the public with the ability to search through books. The Authors Guild complained that Google was "engaging in massive copyright infringement" by scanning books and that also that Google would be guilty of copyright infringement by displaying the search results to book-seeking users.

The case was filed in the Southern District of New York and assigned to Judge Denny Chin.  After Judge Chin rejected the proposed class action settlement, the case turned to questions about certification of the class and about fair use.  In May 2012, Judge Chin issued an order certifying the class.  The order also held that the Authors Guild had standing to sue on behalf of its members, a somewhat controversial proposition.

Fair Use

Meanwhile, the parties focused on whether Google was protected by the fair use doctrine. As part of that briefing, in August 2012 EFF filed an amicus brief supporting Google's fair use defense.  EFF was joined by three associations representing over 100,000 libraries, the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries.  The amicus brief pointed out several factors favoring fair use.  Among others:

  • Librarians surveyed about Google Book Search said the service can help them find valuable research sources inside their own libraries as well as lead them to rare books they can borrow from other institutions.
  • Many librarians said that they have purchased new books for their collections after discovering them through using Google Book Search.
  • Google Book Search is a reference tool that helps people find books, and serves the public benefit.

However, before Judge Chin could rule on fair use, Google appealed the class certification order.  In September 2012, the Second Circuit Court of Appeals stayed the lower court proceedings pending the class certification appeal.  When that appeal was argued in May 2013, there was a bit of a surprise: The Second Circuit was far more interested in fair use than in class certification.  In July 2013, the Court sent the case back to Judge Chin to decide the fair use issue.

In September 2013, Judge Chin heard oral argument on fair use.  On November 14, 2013, he granted summary judgment for Google.  He discussed each of the fair use factors and concluded that, as a whole, Google Books Search was fair use.  His remarks made it clear that copyright serves, and does not impede, the public interest:

In my view, Google Books provides significant public benefits.  It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.  It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books.  It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.  It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life.  It facilitates access to books for print-disabled and remote or underserved populations.  It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

The Authors Guild has filed an appeal to the U.S. Court of Appeals for the Second Circuit.  The appeal was argued on December 3, 2014; a decision is pending.

Stay in Touch

NSA Spying

EFF is leading the fight against the NSA's illegal mass surveillance program. Learn more about what the program is, how it works, and what you can do.

Follow EFF

Breaking: No TPP deal reached in Hawaii, announce trade ministers.

Jul 31 @ 8:06pm

América Latina: El cifrado como derecho, entrevista al Relator de Libertad de Expresión @EdisonLanza de la @CIDH. https://eff.org/r.j5wx

Jul 31 @ 6:41pm

Does your Android phone suffer from StageFright? Here's how you can protect yourself. https://eff.org/r.gxjb

Jul 31 @ 4:05pm
JavaScript license information