Google and Authors Guild return to court for fair use showdown

It’s been almost four years since Google and the Authors Guild asked US District Judge Denny Chin to approve a massive copyright settlement that would have cleared the way for distributing more than 20 million books Google scanned at libraries around the world.

On Monday, the parties return before Judge Chin, but this time as adversaries to argue a very different topic: whether the book scanning can count as a “fair use” that allows Google to avoid the permissions and penalties set out in copyright law.

The dispute dates from 2005, when the Authors Guild first filed a class action against Google, but only heated up again after the big settlement failed and the Guild sued the search giant anew in late 2011. This summer, momentum shifted to Google after a unanimous appeals court panel reversed Chin’s decision to certify the class action and told him instead to consider the fair use issue.

Google argues that its book scanning is “transformative” because its Google Books tool is for searching, and doesn’t affect authors’ sales. The Authors Guild counters that the company is running roughshod over writers’ ability to control their works, and that Congress is the one who should decide the fair use question.

Meanwhile, as the dispute drags on, the online book world is dramatically different from when Google began scanning in 2005. As James Grimmelmann notes, Google is just a bit player in a book business dominated by Amazon(s amzn) and a plethora of new platforms, while the Authors Guild has become “trapped in the trope of Evil Google.”

Judge Chin has not been sympathetic to Google’s arguments in the past but he is an outlier on the appeals court that will oversee his ruling (and on which he now sits), meaning the process could drag out for several more years.

We’ll be at today’s hearing in Manhattan federal court and will post the highlights. (For more background, see my The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library. It’s available for $2.99 here.)