{"id":656859,"date":"2013-05-08T16:54:04","date_gmt":"2013-05-08T20:54:04","guid":{"rendered":"http:\/\/paidcontent.org\/?p=229092"},"modified":"2013-05-08T16:54:04","modified_gmt":"2013-05-08T20:54:04","slug":"fair-use-takes-center-stage-at-google-books-appeal","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/656859","title":{"rendered":"\u201cFair use\u201d takes center stage at Google Books appeal"},"content":{"rendered":"

Google and the Authors Guild resumed an eight-year battle on Tuesday morning before the US Second Circuit Court of Appeals, where judges pressed both sides to provide a straight-up answer as to whether Google\u2019s decision to scan millions of books amounted to \u201cfair use\u201d under copyright law.<\/p>\n

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.<\/p>\n

The three appeals court judges, however, appeared less interested in the technical aspects of class actions than they were in tackling \u201cfair use\u201d \u2014 a four part test<\/a> that examines whether a given activity (in this case Google\u2019s book scanning) should be exempt from copyright.<\/p>\n

\u201cShouldn\u2019t we address that first?\u201d asked Judge Pierre Lavel, a noted fair use scholar<\/a>, adding that the issues in the case appeared to be \u201cout of sequence.\u201d<\/p>\n

Lavel and fellow judge, Barrington Parker, appeared sympathetic at times to Google\u2019s 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.<\/p>\n

\u201cIf the case is continued, you could face decades of litigation,\u201d said Parker. \u201cThis project, with potentially enormous value for our culture, has this great cloud hanging over it.\u201d<\/p>\n

Judge Leval also suggested that the book scanning may be analogous to a famous fair use case known as \u201cPerfect 10,\u201d <\/a>in which a California case held that showing thumbnail images in search results is fair use \u2014 even though the entire image is reproduced.<\/p>\n

One or many lawsuits?<\/h2>\n

Google\u2019s lawyer, Seth Waxman, reiterated Google\u2019s position that the scanning is transformative but argued that the court should decertify the class, and require the plaintiffs to proceed individually \u2014 rather than as a unified block.<\/p>\n

The search giant\u2019s position is that the millions of authors in question have very different perspectives on the scanning \u2014 and that many of them support it. The latter, Google says, shouldn\u2019t be forced into a lawsuit they don\u2019t 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\u2019s search results.<\/p>\n

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.<\/p>\n

\u201cYou\u2019re going to have to get this resolved. Are you going to have 5, 10, 20 different lawsuits? Poetry, science, math table ligation?\u201d<\/p>\n

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 \u2014 a potentially risky proposition for the Guild too.<\/p>\n

The court drew a laugh when it asked the Guild\u2019s lawyer, Robert LaRocca,\u00a0if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google\u2019s choosing.<\/p>\n

The judges also asked LaRocca to the explain why some authors where supporting Google\u2019s; he described them as \u201ca very, very vocal group out at\u00a0Berkeley.\u201d<\/p>\n

What next: some possible end games<\/h2>\n

It\u2019s 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 \u2014 a decision that could then be appealed back to the Second Circuit.<\/p>\n

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 \u2014 who now sits on the Second Circuit as a colleague of the three judges who heard today\u2019s hearing. In the past, Chin has shown more sympathy to copyright owners than Leval; the trick for the appeals court, then, would be to hand the case back to Chin with obvious guidance, but without upbraiding his handling of it so far.<\/p>\n

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 Hathi Trust<\/a>, against a group of university libraries.<\/p>\n

At the Tuesday hearing, the Authors Guild\u2019s attorney said paying up would cost Google just 90 days of earnings \u2014 or around three billion dollars. It\u2019s an interesting idea, but it\u2019s not going to happen.<\/p>\n

First, Google can litigate this thing till the cows come home. Second, the actual amount at issue is much less than the extravagant multi-billion dollar figures flashed in numerous headlines. As I\u2019ve explained before<\/a>, the Authors Guild is seeking $750 per scanned book \u2014 but the actual number of books that would qualify is far fewer than the overall number of what Google has scanned.<\/p>\n

Another possible outcome is that the appeals court agrees with Google\u2019s 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\u2019s mighty lawyer machine out of their own pockets \u2014 game over, in other words.<\/p>\n

Finally, the two sides may enter settlement negotiations (if they haven\u2019t already)\u00a0to 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\u2019t count on this, especially, if Google believes it can win the fair use ruling.<\/p>\n

To read more background and insider details on the whole saga, see my e-book: \u201cThe Battle for the Books: Inside Google\u2019s Gambit to create the world\u2019s biggest library<\/a>.\u201d<\/p>\n

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