It took Judge Denny Chin less than 40 minutes yesterday to hear oral arguments on the cross motions for summary judgment in the Authors Guild’s long-running lawsuit against Google over its library book scanning project. Once expected to be a defining copyright battle for the digital age when it was first filed in 2005, the case came down to a short, anticlimactic hearing in which Chin reserved judgment, but sounded more than ready to deliver a decision that could end the matter.
Arguing for the Authors Guild, attorney Ned Rosenthal opened by insisting that Chin should evaluate Google’s efforts not by how users use Google Books, but by how Google uses the corpus of scanned works—as a commercial advantage for its search engine over competitors, without having paid copyright owners. But Rosenthal made it just a few sentences into his argument before Chin interjected with a series of pointed questions and observations.
Chin laid out the many benefits of the Google database, at one point even noting that his law clerks use Google Books to do cite checks. He also acknowledged two amicus briefs as very helpful—one from libraries, which detailed all the ways Google Books has improved research, and one from a group of humanities professors, who discussed how the corpus enabled new research, such as data mining. Are these not transformative, Chin asked?
In response, Rosenthal again noted the commercial value of the database to Google, which could have—and should have—paid rightsholders for inclusion in the search engine. But Chin pressed, noting that the commercial element did not preclude a finding of fair use.
Rosenthal then pivoted to Google’s display of verbatim text. He suggested that snippet display harmed authors because it encouraged users to go to Google for their book search needs, rather than Amazon, with whom rightsholders have licensed the right to scan books. With Google, Rosenthal noted, users might find all the text they need, where, with Amazon, they are encouraged to buy the book. Further, a diligent user could in theory conduct a long string of searches and end up getting almost the entire book.
Chin again pressed, suggesting the evidence showed the opposite—that users are more likely to find a book on Google and buy it. And he appeared deeply skeptical that any user would go through the effort of the string of searches required to grab an entire book.
Rosenthal also argued that Google violated the copyright law by making multiple scans, and “distributing” copies of scans to libraries. He suggested that Google essentially bought the scans from libraries, with digital copies serving as payment for Google’s access to the materials.
Chin, however, countered that Judge Harold Baer had already found the library copies to be fair use in the HathiTrust case. Was the court not bound by that ruling? Rosenthal (who argued the HathiTrust case as well), said that ruling was on appeal.
Arguing for Google, attorney Daralyn Durie had a much easier time with Chin. She insisted that Google Books was indeed transformative, helping both users and authors. It was the court’s job, Durie stressed, to balance the authors' insistence on being able to absolutely control their works, with the benefit to the public.
Chin asked whether Google really needed to scan entire works to carry out its program. Durie said they did, in order to ensure comprehensive search, and to enable new uses, such as data mining.
Durie also disputed the Authors Guild’s charge that Google “distributed” copies to libraries. She noted that Google allowed the libraries to make digital copies of their books, but that Google could not be held liable for the "volitional" conduct of the libraries.
As for the argument that a user could use strings of searches to retrieve an entire book, Durie said that was highly unlikley. In order to constuct such searches, she argued, a user would have to have the book in front of them.
For both sides, Chin probed whether there were any disputes or questions of fact that would make a trial necessary—suggesting that he was hoping to end the matter with a summary judgment ruling on the fair use question. Google attorneys readily agreed that a trial was not necessary. Rosenthal said there might be some fact questions, but was unable to give the court any examples. After a give-and-take with the judge over what constitutes a question of law vs. a questions of fact, Chin seemed satisfied that there were likely no factual issues.
The Authors Guild final rebuttal argument then closed awkwardly, with Rosenthal raising the issue of Congress. Chin, smiling, quipped about the gridlock in Congress. But Rosenthal, went on to suggest that Congress should address the issues at hand with mass digitization.
Should the court not rule, Chin asked skeptically, in anticipation of Congressional action? With Congress just days away from forcing a potential government shutdown, punting to Congress may not have been the most effective way to close the hearing.
The oral arguments come after a delay of more than a year, while the case was on appeal over a standing issue. Cross motions for summary judgment were first filed in July of 2012. Just weeks later, however, Judge Denny Chin granted a stay in the case pending Google’s appeal of his decision to grant the Authors Guild class action status. Google prevailed in its appeal in July, with the Second Circuit reversing Chin’s decision.
But while the case had been stayed, the legal landscape changed dramatically. In October of last year, the publishers dropped their lawsuit against Google after a bare bones settlement. And just days after the publishers' settlement, Judge Harold Baer delivered an emphatic summary judgment ruling in the Authors Guild vs. HathiTrust, the AG's parallel Google-related scanning case against a collective of university libraries.
The original suit, filed in September of 2005, was the first against Google over its scanning program. And after almost eight years of legal wrangling—including three years spent unsuccessfully stumping together for a controversial settlement—the case is now poised for a resolution.