The court emphatically rejects the authors’ paranoia, especially the ridiculous concern about the security of books in digitized format. The judge thought so little of the insecurity argument that the opinion ignored it (other than mentioning that Google takes security measures).
If the 2nd Circuit Court of Appeals takes the same approach, the HathiTrust case is another loser for the Guild, as it put nearly all of its emphasis on the security argument at oral arguments.
In a powerful affirmation of the value of research libraries, Judge Denny Chin today ruled that Google’s digitization of millions of books from university library collections was a fair use. Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors. Indeed, digitization and search give “new life” to books that would otherwise have been “forgotten in the bowels of libraries.” Well, okay, libraries could probably have lived without that last part.
What lessons are there in this decision? Here are a few takeaways:
While we still await a decision in the HathiTrust case, it can’t hurt that Judge Chin, who now sits on the Court of Appeals for the Second Circuit, wholeheartedly endorses Judge Baer’s reasoning in that case, and finds expressly that all of the libraries’ uses of the Google scans are fair. After all, the Guild tried to sue Google not only for its uses of the scans, but also for sharing scans with research library partners and contributing to any infringement the libraries may have committed. Chin rejects those claims decisively, relying on HathiTrust and endorsing explicitly all of the uses HathiTrust members have made: preservation, search, and access for the print-disabled. Chin even quotes this wonderful passage from Judge Baer, which always bears repeating:
“I cannot imagine a definition of fair use that would not encompass transformative uses made by [HathiTrust] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”
In other words, today’s opinion is the strongest possible endorsement of library uses, as well as of Google’s uses, and it shores up Judge Baer’s opinion in that regard.
Amicus briefs really matter. Judge Chin relies on the LCA brief for core pieces of the opinion, including his finding that the Google project has significant benefits for the public (including libraries, researchers, the print-disabled, and more), and that those benefits are generally also favorable for authors, whose works are found and acquired by libraries and others by means of Google Book Search. The amicus brief filed by Digital Humanities Scholars is also crucial in helping Judge Chin explain the benefits of the book database for research.
The decision is a victory not only for transformative, non-consumptive search, but also for serving “traditionally underserved” libraries and their users, including disabled patrons.
It is time for the Authors Guild and other rightsholders to wise up and focus their energies on more productive pursuits. Years and years of litigation, millions in legal fees, and what have they got to show for it? It is beginning to look like individual authors have been sold a bill of goods by their leadership and by the lawyers that have been representing them in these cases. There is no pot of gold at the end of these lawsuits, and the research tools they’re trying to kill are their best hope of finding an audience. It is time for Authors Guild members, and for all authors who have supported this strategy, to ask themselves whether all this has been worth it. The Guild’s leadership has already said it plans to appeal, but perhaps it is not too late for members to suggest otherwise. The Second Circuit Court of Appeals is already deliberating on the HathiTrust case, and will surely issue an opinion before this case can be heard. The same panel hearing that case—Judges Leval, Cabranes, and Parker—will hear any appeal of this one. There is little reason to believe those judges will reverse Judge Baer in Hathi, and then the Guild will find itself once more arguing that what Google did was rank piracy even though its library partners were core fair users. The writing is on the wall and it’s time to back down.
Those are my main impressions and takeaways at this point, though I’m sure this is an opinion we’ll be discussing for weeks, months, and perhaps years to come.
Brandon Butler is the Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic at American University, Washington College of Law.
Aren’t these transformative uses, and don’t they benefit society?
A U.S. judge made comments Monday that suggest favor for Google’s defense of its digital books project, which could hobble an authors group’s effort to stop it.
Work that fails to enter a canon—literary, historical, or otherwise—tends to languish on the dustier shelves of college libraries. Digitization allows a new generation of scholars to look at them with fresh regard. This represents a significant change in the way we think about scholarship. Google Books is a kind of Victorian portal that takes me into a mare magnum of out-of-print authors, many of whom helped launch disciplines. Or who wrote essays, novels, and histories that did not transcend their time. Or who anonymously produced the paperwork of emerging bureaucracies, organizations, and businesses that, because printed, has been scanned and, because scanned, is now available.
ORDER: The briefing schedule for the parties’ cross-motions for summary judgment is hereby modified as follows: (1) By August 26, 2013, the parties shall file their oppositions to the cross-motions for summary judgment. The parties shall include any arguments in response to the amici curiae briefs in their memoranda in opposition to the cross-motions. The parties’ memoranda of law shall not exceed 50 pages, including any response to the amici curiae briefs. (2) By September 9, 2013, in memoranda of law not to exceed 20 pages, the parties shall file their replies in support of the cross-motions for summary judgment. (3) Oral argument on the cross-motions for summary judgment will be heard on September 23, 2013 at 2:30 PM. SO ORDERED. (Responses due by 8/26/2013, Replies due by 9/9/2013.), ( Oral Argument set for 9/23/2013 at 02:30 PM before Judge Denny Chin.) (Signed by Judge Denny Chin Sitting by Designation on 7/8/2013) (rsh)
Full text of the order:
ORDER: By August 5, 2013, the parties shall file their oppositions to the cross-motions for summary judgment. The parties shall include any arguments in response to the amici curiae briefs in their memoranda in opposition to the cross-motions. The parties’ memoranda of law shall not exceed 50 pages, including any response to the amici curiae briefs. By August 19, 2013, in memoranda of law not to exceed 10 pages, the parties shall file their replies in support of the cross-motions for summary judgment. Oral argument on the cross-motions for summary judgment will be heard on September 5, 2013 at 10:00 AM.
This morning a panel of judges from the Federal Court of Appeals for the Second Circuit issued a short but significant opinion in the hotly-contested Google Books litigation. In less than 5 pages, the court reverses district court judge Denny Chin’s decision to certify the Authors Guild’s class action lawsuit against Google. The appeals court ordered Judge Chin to first consider Google’s fair use defense, as the success of that defense would render the question of whether the suit should go forward as a class action moot. The court also said that sorting out the issues involved in a fair use determination would also help sort out whether a class action proceeding is appropriate. The appellate court also expressed sympathy for Google’s argument that the Guild is not representative of most authors, citing Google’s evidence that many, perhaps most, authors benefit from Google Book Search and would not want the Guild to prevail in its suit. The court did not decide that issue, though, and it may resurface later.
Professor James Grimmelmann, an avid commentator on the lawsuit, has suggested that the decision implies the court thinks the fair use outcome will likely favor Google. I’m not sure I would go that far. It may just be that the court thinks proceeding as a class action raises the stakes so substantially that it makes sense to explore any alternative that could potentially end the suit before that dramatic escalation takes place.
Regardless of whether this decision telegraphs good vibes about the fair use outcome, it’s a great precedent for future fair uses. It means that fair use cases will be tried more quickly and the stakes of the litigation will not be raised to the extraordinary level of a class action without first reaching the question of fair use. This is, I think, another nail in the coffin of the myth that fair use is just the right to hire a lawyer. Together with the attorneys’ fees awards in GSU and other fair use cases, the early decisions in cases like the South Park “What What” parody, and even the Prince “Let’s Go Crazy” case that says rightsholders have to consider fair use before issuing DMCA takedowns, this decision is creating a series of procedural protections that make fair use a real user’s right.
UPDATE: The full text of the opinion is here.
On August 1, 2012, ARL joined other members of the Library Copyright Alliance (LCA) (the American Library Association, Association of Research Libraries and Association of College and Research Libraries), as well as the Electronic Frontier Foundation (EFF), to file a friend of the court brief (PDF) in Authors Guild v. Google, Inc., a lawsuit in which authors allege that Google violated copyright by scanning books to create Google Book Search (GBS), a search tool similar to its Internet search engine. The LCA/EFF brief defends GBS as permissible under the doctrine of fair use, a flexible right that allows copying without payment or permission where the public benefit strongly outweighs the harm to individual rightsholders.
The LCA/EFF brief argues the following main points: that Google Book Search is tremendously beneficial to the public, that this public benefit tilts the analysis firmly in favor of fair use, that a legislative “fix” is both unnecessary and unworkable, and that the Authors Guild should not be permitted to shut down Google Book Search after encouraging public reliance on the tool for years.
In addition to these general arguments, the LCA/EFF brief incorporates stories contributed by librarians of all types demonstrating the ways in which GBS is an essential tool for librarians, enables new forms of research, and even benefits authors. Librarians know a thing or two about searching for books, and we know that GBS is just the latest in a long tradition of legitimate and fair tools to help research, teaching, and learning.
The members of LCA have long had a commitment to supporting libraries’ interest in the Google Book Search settlement agreement. For more, including past guides to understanding the settlement, see the ALA Washington Office GBS blog at http://wo.ala.org/gbs/ and the ARL Google Books resource page at http://www.arl.org/pp/ppcopyright/google/index.shtml.