PC World is reporting that Google Books has been allowed to live, for now. The win is huge for Google, which faced fines of up to $750 per copyrighted work, leading to a potential overall cost of more than $3 billion. But even more, it is a huge win for markets and access to information.
A U.S. court has decided that the class-action designation of the copyright lawsuit brought against Google by the Authors Guild over the company’s book-scanning project was “premature,” and has returned the suit to a lower court for consideration of fair use issues.
Google’s stated mission is to organize the world’s information. In 2002, the company moved to solve several huge problems with books, namely searching within printed books, giving readers access to out-of-print books, and gathering all their metadata (reviews, where to buy and borrow).
Fast forward three years and 20 million books scanned and digitized. The Authors Guild filed suit, seeking class-certification status in order to represent every U.S. copyright holder whose books had been scanned by Google. The dubious claim was that in showing snippets (never whole works) of copyrighted books Google was hurting authors.
Google’s contention was twofold. First, Google said that individual authors or publishers own the copyrights, not the Author’s Guild. Second, Google asserted that Google Books’ use of published material was protected by “fair use” because the principle allows reproduction of small amounts of copyrighted material without permission. Google Books would only show small sections of in-copyright books. Users can only read the full versions of public-domain books.
In the end, a panel of the 2nd U.S. Circuit Court of Appeals in New York decided that a previous court had granted the Author’s Guild class-certification status too soon. The panel ruled that the court should have first whether Google’s use of snippets of books falls under “fair use.”
The three-judge panel indicated that they were skeptical that the Author’s Guild can represent every affected author, especially as many authors have come out in favor of the project. The panel also seemed unmoved by the contention and that the snippets fall outside of “fair use.”
The judge whose ruling the panel called into question is Circuit Judge Denny Chin. The judge rejected a $125 million settlement in 2011 on the basis that it would give Google a “de facto monopoly” on digitizing books. But that doesn’t pass the smell test. Anyone could start digitizing and organizing books as Google has done. So, by that logic, any first mover has such a “de facto monopoly.”
The Author’s Guild is getting ready to get back in the ring over “fair use.” But they’ll have to do so without the group of major publishers who settled with Google over the case last week.
Now it will be up to Chin to determine the “fair use” argument. This decision will rest on aspects such as the ‘purpose and character’ of the copying and the effect it has on sales. Google will argue that by making it easy to buy the books, the effect is positive.
Cathy Reisenwitz is a D.C.-based writer and political commentator. She runs Sex and the State and writes regularly for Thoughts on Liberty. Her writing has appeared in the Washington Examiner, the Daily Caller and the AFF Free the Future blog. Books image courtesy of Big Stock Photo.