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Summary:

The long-running fight over Google’s decision to scan the world’s library books took a new twist on Wednesday as an appeals court pushed the parties over copyright law’s “fair use” doctrine.

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photo: Google

Google and the Authors Guild resumed an eight-year battle on Tuesday morning before the U.S. Second Circuit Court of Appeals, where judges pressed both sides to provide a straight-up answer as to whether Google’s decision to scan millions of books amounted to “fair use” under copyright law.

On the surface, the hearing was supposed to determine if a lower court made a mistake last year when it ruled that the case could proceed as a certified class action, meaning that the Authors Guild can seek damages from Google on behalf of every writer whose book was scanned.

The three appeals court judges, however, appeared less interested in the technical aspects of class actions than they were in tackling “fair use” — a four part test that examines whether a given activity (in this case Google’s book scanning) should be exempt from copyright.

“Shouldn’t we address that first?” asked Judge Pierre Leval, a noted fair use scholar, adding that the issues in the case appeared to be “out of sequence.”

Leval and fellow judge Barrington Parker appeared sympathetic at times to Google’s position that the book scanning is transformative and acts as a discovery method, rather than as a replacement for book sales. They suggested that the lower court should address the fair use issue sooner than later.

“If the case is continued, you could face decades of litigation,” said Parker. “This project, with potentially enormous value for our culture, has this great cloud hanging over it.”

Judge Leval also suggested that the book scanning may be analogous to a famous fair use case known as “Perfect 10,” in which a California case held that showing thumbnail images in search results is fair use — even though the entire image is reproduced.

One or many lawsuits?

Google’s lawyer, Seth Waxman, reiterated Google’s position that the scanning is transformative but argued that the court should decertify the class, and require the plaintiffs to proceed individually — rather than as a unified block.

The search giant’s position is that the millions of authors in question have very different perspectives on the scanning — and that many of them support it. The latter, Google said, shouldn’t be forced into a lawsuit they don’t support. In its earlier filings, Google produced a survey that said many authors like the idea of having snippets of their books appear in the company’s search results.

The appeals court, however, appeared reluctant to break the case into multiple baskets of plaintiffs, and questioned if this would lead to separate cases for every type of book.

“You’re going to have to get this resolved. Are you going to have five, 10, 20 different lawsuits? Poetry, science, math table ligation?” Judge Parker wondered

The Authors Guild, meanwhile, wants to go ahead with the fair use ruling, at trial if necessary, without distinguishing the different types of books and authors at issue — a potentially risky proposition for the Guild too.

The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing.

The judges also asked LaRocca to explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.”

What next: some possible end games

It’s risky to read legal tea leaves from the questions judges ask. But, in this case, the appeals court appeared to be strongly considering remanding the case for a ruling on the fair use question — a decision that could then be appealed back to the Second Circuit.

The situation, however, is complicated by internal judicial politics. Specifically, the lower court judge who would have to take up the fair issue is Denny Chin — who now sits on the Second Circuit as a colleague of the three judges who heard today’s hearing. In the past, Chin has shown more sympathy to copyright owners than Leval; the trick for the appeals court, then, is to hand the case back to Chin with obvious guidance, but without upbraiding his handling of it so far.

There is also, of course, the question of money. Google has enough cash to litigate to the Supreme Court and back without breaking a sweat. The Authors Guild, on the other hand, may be feeling stretched as it pays for the appeals in the current case, while also pursuing a parallel case, known as HathiTrust, against a group of university libraries.

At the Tuesday hearing, the Authors Guild’s attorney said paying up would cost Google just 90 days of earnings — or around three billion dollars. It’s an interesting idea, but it’s not going to happen.

First, Google can litigate this thing till the cows come home. Second, the actual amount at issue is much less than the extravagant multibillion dollar figures flashed in numerous headlines. As I’ve explained before, the Authors Guild is seeking $750 per scanned book — but the actual number of books that would qualify is far fewer than the overall number of what Google has scanned.

Another possible outcome is that the appeals court agrees with Google’s request to decertify the class. This would likely force the Authors Guild to pack up and go home, leaving the handful of individual author plaintiffs to take on Google’s mighty lawyer machine out of their own pockets — game over, in other words.

Finally, the two sides may enter settlement negotiations (if they haven’t already) to permit the Authors Guild to enjoy a symbolic victory and, possibly, recoup some of their legal fees, while letting Google appear as a good guy. But don’t count on this, especially, if Google believes it can win the fair use ruling.

To read more background and insider details on the whole saga, see my e-book: “The Battle for the Books: Inside Google’s Gambit to create the world’s biggest library.”

  1. BenjaminGilead Thursday, May 9, 2013

    “The Authors Guild, on the other hand, may be feeling stretched as it pays for the appeals in the current case”

    Microsoft is number one financial supporter of the group, money is not a problem.

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    1. Benjamin,

      What’s the factual basis of your assertion?

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    2. That’s an interesting theory, Benjamin. Can you point to any evidence this is the case?

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    3. And if so, do you have any evidence that this vocal group at Berkeley is supported by Google? I wouldn’t be surprised.

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  2. fred johnson Thursday, May 9, 2013

    Jeff:

    Copy edit error.

    HathiTrust is one word. Not Hathi Trust.

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  3. Fred, thanks for flagging. That’s fixed

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  4. David Levine Thursday, May 9, 2013

    From the very beginning, Google’s business model rested squarely on piracy: stealing other people’s property to attract eyeballs. This is especially the case with image search, where Google infringes by creating thumbnails, and ironically steals the bandwidth from the victims to serve up the full-size images. The current project is Google’s attempt to steal millions of books totally without permission of the rights-holders. Google’s project (and the Hathi Trust project, which is a flunkie of Google) would turn copyright law upside down and screw millions of authors and publishers. The proper resolution would be for Google to face criminal infringement complaints and Google executives to see the inside of federal prisons.

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    1. Exactly how are authors being harmed by either the Google Book scans or the HathiTrust (truly a library project with no connection to any corporate body, Google or other) archive?

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      1. It’s easy to understand how. I routinely used Google Books to do research long before this lawsuit. Google routinely includes large blocks of text in their search results. Sometimes I would go 10-15 pages before reaching a page that was symbolically held back.That meant I wasn’t paying for the book. The author was short changed the chance for a sale.

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        1. Mtpdmblo,
          You’ve misunderstood something fundamental. If you are seeing 10-15 pages of a book in Google Book Search, it is because your publisher has given Google permission to display it. The book is in their “partner program.” It is only when you see a “snippet”–a couple of lines around a search term–that they have not gotten permission. The lawsuit concerns the snippets, not the Partner Program. Seems you, for one, have gotten a lot of use out of that program. But if you don’t want your book in it, your issue is with your publisher, not Google.

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    2. David,
      Your position is tendentious. An appellate court has found thumbnails to be a fair use (Perfect 10 vs. Amazon). How are they “stealing” books? Why aren’t they “helping people to find books”? Why aren’t they ushering books onto the Web, where people can find them? Why would it be a good result for Google to be found criminally negligent? How would the world be a better place for that?
      Mary

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      1. It all depends upon how much they display. Perhaps a few sentences are fair use– even if they’re not using it to advance the art or provide any commentary. But they routinely show much, much more than a few sentences of many books.

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