US judge boosts Google ‘fair use’ defense of digital books

Mon Sep 23, 2013 6:02pm EDT

NEW YORK (Reuters) – A federal judge on Monday appeared to favor Google Inc’s legal defense of its digital books project, which could imperil efforts by authors seeking to block it.

Google, based in Mountain View, California, has scanned more than 20 million books since its 2004 agreement with libraries worldwide to digitize books.

The Authors Guild and groups representing photographers and graphic artists say the project amounts to massive copyright infringement.

Google argues the practice constitutes fair use, an exception under U.S. copyright law, because it only provides portions of the works online.

At a hearing in U.S. district court in New York on Monday, Judge Denny Chin said the question of fair use relies in part on whether the project “is a benefit to society.”

Chin then rattled off several examples of how Google’s project has helped people find information, including his own law clerks.

“Aren’t these transformative uses, and don’t they benefit society?” asked Chin.

Edward Rosenthal, a lawyer representing the authors, said the project, “may benefit society in some instances,” but it should be up to the copyright holder whether or not the work is displayed.

Further, the act of copying the books in and of itself violates the law, and copyright holders should at least be compensated, said Rosenthal, who called Google, “a copy shop for the 21st Century.”

Chin countered by noting examples of people buying books after finding information about them through Google, suggesting the project can boost sales.

The authors have also argued that people could compile entire works for free by using various search terms.

Daralyn Durie, a lawyer for Google, said this is theoretically possible, but “extremely unlikely to happen,” a sentiment Chin seemed to endorse.

“Is this a real concern?” Chin asked.

Chin also dismissed a suggestion from Rosenthal that the U.S. Congress should decide the issue.

“Does anything get done in Congress these days?” Chin said. “What are you suggesting? That I don’t decide … and wait for Congress?”

Chin’s criticism of the plaintiffs’ arguments echoed that of a three-judge panel of the 2nd U.S. Circuit Court of Appeals, which appeared to be skeptical of the lawsuit in July.

Google’s project could have “enormous value for our culture,” Circuit Judge Barrington Parker said in July. “This is something that has never happened in the history of mankind.”

The 2nd Circuit ruled that Chin was premature in certifying the authors as a class without first deciding if the fair use defense under U.S. copyright law allowed Google to display snippets of books and returned the case to Chin.

Chin, who became an appeals court judge in the 2nd Circuit in 2010, but who retained jurisdiction over the case against Google at the district court level, did not rule on the question of fair use at Monday’s hearing.

The case is Authors Guild Inc et al v. Google Inc, U.S. District Court, Southern District of New York, No. 06-cv-08136

(Reporting by Bernard Vaughan. Editing by Andre Grenon)

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