Authors Guild loses appeal of Google book scanning case
US Court of Appeals panel rules that Google’s scanning of books, in cooperation with libraries, and for the purpose of search and indexing, constitutes fair use
The next stop is the Supreme Court – so says the Authors Guild after the US Court of Appeals for the Second District ruled that Google’s scanning of books did not constitute copyright infringement. The ruling upheld a similar ruling by the US District Court for the Southern District of New York.
In its decision the court said “we conclude that Google’s making of a complete digital copy of Plaintiffs’ works for the purpose of providing the public with its search and snippet view functions (at least as snippet view is presently designed) is a fair use and does not infringe Plaintiffs’ copyrights in their books.”
“We are very disheartened that the court was unable to understand the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage,” said Mary Rasenberger, executive director of the Authors Guild in New York. “We trust that the Supreme Court will see fit to correct the Second Circuit’s reduction of fair use to a one-factor test – whether the use is, in the court’s eye, ‘transformative.’”
The Authors Guild, several publishers and authors entered into the lawsuit in 2005, shortly after Google began its project. One of those suing is the former pitcher Jim Bouton, author of Ball Four.
Google’s scanning project is in cooperation with libraries, including those at the University of Michigan, the University of California, Harvard University, and Stanford University. These participants submit books for scanning with Google producing extracts and an index of machine-readable text. Since 2004. Google has scanned and indexed more than 20 million books, court documents said. The goal, of course, is to be able to search and data mine these works for research or other purposes, with Google saying the project also would lead to more book sales as searchers find the works with the desired text.
“We have no difficulty concluding that Google’s making of a digital copy of Plaintiffs’ books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell,” the court said, citing the 1994 ruling for Campbell v. Acuff-Rose Music involving fair use of Roy Orbison’s “Oh, Pretty Woman” in a parody rendition.