Don’t wait for Congress to fix fair use, says judge in Google Books case

The federal judge in the long-running case between Google(s goog) and the Authors Guild made clear on Monday that no one should hold their breath waiting for Washington to decide if the search giant’s scanning of 20 million library books amounts to a “fair use” under copyright law.

“Does anything get done in Congress these days?” mused U.S. circuit judge Denny Chin, rejecting a call by authors’ lawyers to hold off on deciding the fair use question. He added that Congress has already proven incapable of solving the problem of “orphan works” books.

This means that Chin is likely to make an up-or-down decision soon on whether Google’s scanning was legal under “fair use” — a four-part test that looks at factors like the purpose of the copying and its effect on the original market. Google has argued that its activities are “transformative” because its purpose was to facilitate searching and indexing, not to supplant book sales. The Authors Guild counters that it’s not Google’s place to take scanning into its own hands.

Judge Chin, who rejected a settlement between Google, publishers and the Authors Guild in 2011, has been critical of Google’s fair use theories in the past. On Monday, though, he referred repeatedly to recent cases about universities’ digitization initiatives; judges in those cases found fair use.

The fair use hearing has placed Chin in an uncomfortable position because three of his colleagues on the Second Circuit Court of Appeals unanimously decided to reverse his earlier decision to allow the authors to go forward as a class action ruling, and punted the case back to Chin to address the fair use issue. One of those colleagues has made arguments in favor of fair use that appear in an oft-cited Supreme Court decision.

Chin must now decide whether to bite his tongue and declare that Google’s scanning was a form of fair use — and accept what amounts to a “no harm done” theory from Google — or else say it was not fair use, in which case Google will almost certainly appeal the matter back to his colleagues.

At Monday’s hearing, a lawyer for the authors harrumphed that Google was “the copy shop of the twenty-first century” and that the company is getting rich off book-related searches. This argument may be wearing thin, however, given that there’s little evidence that Google’s book search function undercuts online book sales.

The overall case is further complicated because of the appeals court’s decision to halt the class action. The absence of a class action means that Google could simply choose to settle with the two individual writers who are now carrying the torch for the whole litigation, and put an end to the matter. (If this happens, the appeals court could reinstate the class action, but it’s far from certain that they would do so.)

There’s also the question of money. Litigating cases up and down the New York appeals scene is not cheap and, unlike Google, it’s unclear if the Authors Guild has the resources to go on forever. The best answer for everyone involved may be for Google to get a fair use ruling (especially as no else is going to digitize the world’s libraries), and for the company to provide a gesture that acknowledges authors’ desire for dignity.

Monday’s hearing was shorter than anticipated and its biggest surprise may have been the high profile Googlers in attendance. Head counsel and SVP David Drummond was there, as well as renowned copyright scholar Bill Patry. So was Alexander MacGillivray, a longtime Google lawyer who recently stepped down as general counsel of Twitter.

(For more background, see my ebook The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library. It’s available for $2.99 here.)