In U.S. District Court on Monday, Judge Denny Chin held a hearing on Authors Guild v. Google, another step in the long-running “Google Books” case. At issue is whether Google’s scanning of over 20 million copies of books, largely received from university libraries, to create a searchable database constitutes a fair use under copyright law. For a recap of how the case got to this stage, see this flowchart from Library Copyright Alliance (LCA) counsel Jonathan Band.
In a positive development for libraries, Judge Chin indicated Monday that he sees validity in Google’s fair use argument. More specifically, his line of questioning to the Author’s Guild attorney made frequent reference to the Google Books project as seemingly having “benefits to society.” Judge Chin cited the LCA (of which ALA is a member) amicus brief, noting that the Google Book project “facilitates interlibrary loans and helps to narrow searches, to expedite searches.” Judge Chin listed additional examples of how this project appeared to be beneficial to the public including a personal example – his own law clerk on the Columbia Law Review used it to find and verify sources. Chin asked, “Aren’t these transformative uses and don’t they benefit society?”
Judge Chin specifically addressed whether he should make a summary judgment on the fair use argument or wait until Congress addresses this issue. For those following the copyright reform process in the U.S. Congress, his answer should be particularly illuminating:
Is anything done in Congress these days? How long would it take reasonably for this to be resolved in Congress? Even the issue of orphan books has been percolating in Congress for years and years and years.
As we wait for Judge Chin to issue a decision, it should be noted that although he indicated support for their fair use argument, there’s no guarantee he will make a summary judgment in favor of Google. If this case does go in favor of Google, it will be another huge ruling in favor of fair use and in turn, libraries. In October 2012, District Court Judge Baer ruled in favor of the HathiTrust Digital Library, affirming their fair use claim. That case is currently under appeal. Stay tuned to the District Dispatch for news and analysis on the HathiTrust and Google Books case.