After some 8 years of litigation, a federal judge in New York has approved Google Book Search as legally valid under the Copyright Act’s fair use provisions (17 U.S.C. § 107) in Authors Guild Inc v. Google Inc. (S.D.N.Y. 14 Nov 2013). Book publishers sued Google claiming that its book search component violated their copyright in various published works that Google was scanning and making snippets available online for free. Fair use is a classic defense to copyright infringement claims. Under copyright law, fair use has 4 components (as articulated by Justice Joseph Story in Folsom v. Marsh): (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. By raising the fair use defense, a defendant effectively says, “yeah, I infringed your copyright, but it’s OK.” Collected news coverage comes from the indispensable How Appealing blog. Some quick analysis from the copyright blogosphere and the NY Times write up.
The Court’s decision is a major victory for Google and similar digital platforms in making books (or book previews) more accessible to audiences worldwide. The Google Book Search is a separate program from Google’s effort to digitize many classic works of literature, which are in the public domain and out of the realm of copyright protection (e.g. Jane Austen or Shakespeare’s complete works). The Google Book Search enables students, scholars, or interested readers to read a sample of a book from the comfort of their home or favorite coffee shop and then buy the actual book (still protected by copyright) from their local bookstore or favorite online retailer. It remains to be seen how the Court’s decision will affect the future of copyright law and the digital content revolution, which are two intertwining (sometimes cohesive, sometimes conflicting) strains of a very large, complex tapestry.
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(c) 2013, Stephen M. Johnson, Esq.