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Will Google Books Become the World's Library?

Authors across the U.S. are outraged by a recent federal appellate court decision they believe nullifies their copyrights in books and magazine articles they've written and unfairly gives Google rights in those works that may (eventually) gut their commercial value.

Specifically, the decision of the U.S. Court of Appeals for the Second Circuit in The Authors Guild, et al. v. Google, Inc. found that Google's scanning of copyrighted books as part of its Library Project amounts to "fair use" and does not violate federal copyright law. The case arose when a group of authors sued Google alleging it had violated their copyrights by making digital copies of their works beginning in 2004. That year the Internet giant began contracting with different libraries across the country for the borrowing of millions of books, which were later to be scanned and digitalized as part of the Google Books project and the Google Library project. The authors had not given permission to Google for the use of their works in the projects.

The plaintiff in the case, Authors Guild, is the largest American organization for writers and it acts as an advocate for the copyright protection of authors. Many Authors Guild members have written one or more of the 20 million books Google has scanned and made available for search by internet users who could access a "snippet" view of the works through Google's service. Google did include in its service an "opt out" provision that allows authors or copyright holders with concerns about having portions of their works available for view through the Google's Library Project to remove their works from public access.

The Federal district court rejected an early settlement and Google then brought a motion for summary judgment on its "fair use" defense. In 2013, the federal district court granted Google's motion, finding that Google's project constituted fair use and in its recent decision, to the consternation of authors everywhere, the Second Circuit upheld that ruling.

In reaching its ruling, the Second Circuit concluded that the making of a digital copy of copyrighted works to allow the sort of advanced search capabilities allowed by Google's Library Project amounted to "a highly transformative purpose." Further, it reasoned that providing "tiny snippets" for view was designed to permit a researcher just enough context around a search term to evaluate whether the work was of relevance or not without "revealing so much as to threaten the author's copyright interests."

Authors Guild already has announced plans to appeal the decision to the Supreme Court.

Why It Matters. "Fair use" is a legal doctrine that provides a defense to a claim of copyright infringement under certain very limited conditions. The doctrine is codified in Section 107 of the Copyright Act of 1976 and provides that "fair use" for purposes such as "criticism, comment, news reporting, teaching ... scholarship, or research" is not an infringement of copyright. The statute contains a list of various factors to be considered in determining if any given use is a protected fair use, including the "purpose and character of the use," "the nature of the copyrighted work," "the amount and substantiality of the portion used," and the impact on the "the potential market for or value" of the copyrighted work.

Fair use allows excerpts of copyrighted material to be quoted verbatim without the permission of the copyright owner or the payment of any licensing fee. However, application of the doctrine can be difficult to assess in advance and there is virtually no way to know for certain if a particular use constitutes fair use without a determination by a court. Further, so much depends on the specific circumstances of each particular case that anyone hoping to avoid potential copyright infringement claims by relying on a fair use defense should proceed with extreme caution.

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