After eight years of litigation—including three years in which the parties stumped together for an ill-fated, controversial settlement—Judge Denny Chin last week dismissed a lawsuit filed by the Authors Guild over Google’s mass scanning of library books. In the process, he delivered a crushing blow to opponents of digitization: not only did Chin find Google Books to be legal, he all but declared it totally awesome.
“Indeed,” Chin wrote of Google’s scanning program, “all society benefits.”
For a case once set up to be the copyright battle of the digital age, the final days of litigation were surprisingly anticlimactic. In September, oral arguments on the motions lasted less than 40 minutes, with the publishers, who had once stood shoulder to shoulder with the Authors Guild against Google, having departed the battlefield in 2012 after a confidential settlement. For most observers, a Google victory appeared all but certain in light of recent legal setbacks, including Judge Harold Baer’s equally strong fair use finding in a parallel book-scanning case, The Authors Guild v. HathiTrust.
In the final analysis, Chin, who took more than a year to deliver his rejection of the Google Settlement, delivered his decision six weeks after oral arguments. And he needed just 30 pages to explain why Google's book-scanning was legal.
“Ultimately, I think the Authors Guild suffered from the fact that the case took eight years,” said Glenn Pudelka, a copyright attorney at Boston-based Edwards Wildman Palmer. “In that time, it grew harder for them to show harm had come from what Google had done. To the contrary, Google was able to argue—and Judge Chin agreed—that Google Books does not replace original books, but provides a benefit for those authors and for scholars.”
What a difference a decade makes. When the the suits were first filed, in 2005, with Napster and the newspaper industry's woes fresh in everyone's mind, the intial fear surrounding Google’s digitization plan was palpable, even understandable. Over the next few years, a string of high-profile fair use suits worked their way through the courts. But with yet another major copyright ruling in their favor, the hand wringing of fair use advocates over the legal challenges has turned to applause.
“Fair use jurisprudence has steadily been evolving and expanding,” said Jonathan Band, a Washington lawyer and consultant to the library community. “In essence, the courts are allowing these new technologies that make copies so long as rights holders aren’t harmed—and harm means harm to the rights holder’s core market, not the loss of a potential licensing fee.”
The legal battles are not over, however. After a hearing in late October, the Second Circuit Court of Appeals is now poised to rule on Judge Baer’s fair use verdict in the Authors Guild v. HathiTrust. And in a statement after Chin’s decision, the Authors Guild said it still believes “mass digitization and exploitation far exceeds the bounds of the fair use defense,” and vowed to appeal Chin’s decision.
In addition, this week the 11th Circuit in Atlanta will hear the publishers’ appeal of the 2012 Georgia State e-reserves case, another landmark in fair use. Pudelka said he wouldn’t be surprised if one of these cases finds its way to the Supreme Court. “The last big fair use case reviewed by the Supreme Court was in the early 1990s,” he noted. “I could see the Court weighing in again to establish some guidance in the digital age.”
Nevertheless, Google’s victory represents a new high-water mark. After years of legal uncertainty, fair use advocates, including libraries and universities as well as tech companies, could emerge in a position of strength, especially in the legislative arena, and at a time when talk of copyright reform is gaining momentum. “If the decisions are affirmed, it will underscore the idea that fair use is a better approach at this point for libraries and higher ed than engaging in endless, and likely unproductive, negotiations with rights holders over legislation,” Band said.
For tech companies, meanwhile, Google’s industrial-strength fair use application could spur increasingly bold new ventures—and new legal battles. “More than ever it seems that the adage of seeking forgiveness rather than permission is the way to go,” Pudelka observed. “It raises the question: what do you need permission for these days, especially if you are a technology company?”
Where fair use goes after the Google case is an interesting question, Pudelka said. “Clearly those who want to rely on fair use will be bolstered by this decision,” he observed. “But with fair use cases being fact specific, you can never predict how the next one will turn out.”
Band, meanwhile, offers another sobering perspective. “Speaking for myself, not my clients, I think the world would have been in a better place had the settlement been approved,” he told PW. Although there were concerns with the deal, he noted, there were also benefits that would have expanded access to millions of out-of-print books long forgotten, many in danger of being lost forever. “The settlement would have allowed much more than what is permitted under the Google and HathiTrust decisions.”