Google Books Case Ends, Not With a Bang But a Simper
by William M. Hannay (Partner, Schiff Hardin LLP, Chicago)
In a short opinion issued on November 14, 2013, Judge Denny Chin finally put the Google Books case to rest after eight long years of litigation. Authors Guild, Inc. v. Google Inc., 2013 U.S. Dist. LEXIS 162198, 2013 WL 6017130 (S.D.N.Y. 2013).
For those who love the whole idea of the Google Books project (and many librarians seem to), it is a sweet victory. For others who revere the sanctity of copyright law, Judge Chin’s decision is a puzzlement. They are left scratching their heads, trying to figure out exactly how and when “transformation” became the trump card in fair use analysis.
To recap, Google Inc. began a project in 2004 to digitally scan all the books in the world. To date, Google has copied some 20 million books from scores of libraries, keeping electronic copies for itself and providing one to the participating library. All of these books are accessible through the Internet for online searching, and where there is a “hit,” Google generates “snippets” containing the search term, page reference, and a sentence or so on either side of the term for context. Google makes money by selling advertising on its Internet Website where the searches are conducted. (Google originally planned to sell electronic copies of the entire book, but that concept got shot down by Judge Chin a couple years ago.)
The Authors Guild and a number of individual authors brought a class action copyright infringement suit against Google, which was defended on the basis of the fair use doctrine. (Section 107 of the Copyright Act provides that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.”) After innumerable starts and stops, efforts at settlement, procedural skirmishing, and a trip to the Court of Appeals for the Second Circuit, the parties to the case squared off to fight the fair use battle this Summer. But it all seemed somewhat anticlimactic.
By the Summer of 2013, the Google Books project had been in operation for nearly nine years. The pattern of its use had settled down to a somewhat humdrum existence, and any possibility of Google making huge windfall profits by selling electronic copies of orphan books or for that matter copyrighted books seemed to have evaporated. The passion seemed to have drained out of the fight for all concerned.
In place of the superheated emotions of the fight over the proposed settlement of the case in 2010-11 (which Judge Chin rejected in 2011, see 770 F. Supp. 2d 666), there was a sense of going through the motions. Instead of an informed and informative intellectual debate over the concept of fair use in the electronic world of the 21st Century, there was a rehashing of the positions of the parties from years before. The only “new” thing was the focus on whether the book project constituted a “transformative” use of the copyrighted material, a theory that appears nowhere in the Copyright Act but was hypothesized by Judge Pierre Leval of the Second Circuit in a law review article several years ago.
The metaphysical act of “transformation” had been seized on by Judge Harold Baer a year earlier in the HathiTrust case as a justification for concluding that libraries’ use of Google’s digitally copied versions of books was fair use because Google had “transformed” the books from a paper to an electronic medium and thereby made an “invaluable contribution to the progress of science and cultivation of the arts.” See 902 F. Supp. 2d 445.
It was but a short step for Judge Chin to conclude that, if “transformation” protected the library goose, it must likewise protect the Google gander. He concluded that Google Books was the best thing since sliced bread, simpering as follows:
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.
2013 WL 6017130 at 27-28. Thus, the copying involved in creating this “invaluable” database was merely fair use of the underlying works. Accordingly, the court dismissed the complaint against Google.
The Authors Guild has indicated that it plans to appeal the ruling to the U.S. Court of Appeals for the Second Circuit. Whether the appellate court will examine the “transformative” use concept with a more critical eye than Judges Chin or Baer is hard to say. (The HathiTrust decision is already on appeal to the Second Circuit.) But there is reason to question the wisdom of ignoring the rights of authors and publishers whenever someone comes up with a new technological gimmick. Was it not “transformative” when David O. Selznick made a movie version of the novel, “Gone With The Wind”? But no one would have argued that Selznick could have ignored Margaret Mitchell’s copyright.
Certainly there are benefits to having direct access to 20 million books. (Isn’t that why libraries exist in the first place?) But should that really be the determinative test? The result-oriented analysis of Judge Chin and Judge Baer seems blinded by the economies of scale from massive copyright infringement. If you misappropriate enough books, you become a public resource. But is that right and just? Is it fair?
It is a little reminiscent of the World War II propaganda technique known as “the big lie.” People will believe a big lie sooner than a little one; and if you repeat it frequently enough, people will sooner or later believe it.
Given Judge Chin’s extraordinarily careful analysis of the complex issues raised by the proposed settlement two years ago, one might have expected a far more insightful analysis of the fair use issue. But it is what it is, and we will have to wait to hear what the appeals court says. For the time being though, Google has won this battle and maybe the war.
Mr. Hannay is a partner in the Chicago-based law firm, Schiff Hardin LLP, and a frequent contributor to Against the Grain and the Charleston Conference.