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Google presses fair use case in book scanning appeal

Jeff John Roberts

Google renewed its claim that scanning 20 million books counts as a “fair use” under copyright law, and asked  a federal appeals court to throw out a May ruling that let the Authors Guild go forward with a long-running class action case.

In a brief filed late Friday in New York, Google argued that a class action trial would deny it an opportunity to argue on a book-by-book basis that its scanning was a so-called “transformative” use that falls outside of copyright. This “fair use” argument received a boost in October when a judge dismissed a similar case that the Authors Guild brought against a group of university libraries over a digital collection known as the Hathi Trust.

The new filing by Google is just the latest twist in a case that began in 2005 when publishers and the Authors Guild sued the search giant over its ambitious plan to scan the world’s libraries. The parties eventually reached a settlement that would have created a market for millions of forgotten, out-of-print books but US Judge Denny Chin blew up the deal in 2011 after critics warned it would create a monopoly. The publishers recently dropped their lawsuit against Google but the Authors Guild is pressing on with demands for $750 per book. While the search giant has scanned more than 20 million books, only a relative handful would qualify for compensation under the lawsuit due to legal technicalities.

Overall, the Authors Guild case turns on whether Google’s scanning was “fair use.” Ordinarily, copying an entire work is not fair use but Google argues that its scanning qualifies because the digital copies don’t compete with the existing books but add “something new” — “a greatly improved way of finding them.” The company also argues that the scanned books, which can be seen only in small snippets, do not hurt the market for the original book.

While this is the argument in the bigger picture, Google’s appeal on Friday targets a more narrow question: should the authors be permitted to sue together. Google says they should not because most authors actually approve of the scanning, and that these authors shouldn’t be dragged into a legal action with those who don’t:

Plaintiffs’ objective is to dismantle a project that benefits many, and perhaps most, other class members … [A class certification] would deprive many authors of the benefits they obtain from Google Books—a result those authors could not avoid by opting out of the class. And those authors are numerous: A random survey of published authors by Google’s expert showed that 58% approved of Google scanning their copyrighted books so that the books could be searched online and snippets could be displayed; 45% had seen or expected to see demand for their books increase (versus 4% who expected demand to decline); and 19% said they financially benefit from the project (compared to only 8% who said they do not).

Chin rejected this argument in May and took the big step of “certifying the class” which is a green light for a class action to go to trial. The US Second Circuit Court of Appeals granted Google permission to appeal the certification in August, however, which effectively put the proceedings on ice. The case also slowed after Joanne Zack, a class action expert representing the Authors Guild, passed away suddenly this fall.

It’s impossible to know exactly what’s going on behind the scenes but it’s a good bet that the Authors Guild is pushing for a settlement that will give it at least a symbolic victory and let it recoup its legal fees. Copyright scholars, meanwhile, have been hoping for a grand decision in the case that will provide a working definition of fair use in the digital age.

You can read Google’s filing for yourself here:

Google Appeal Brief on Cert

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