Welcome back to Legal Geek. This week, we return to the expanding field of copyright fair use with a review of the Second Circuit Court of Appeals decision protecting Google Books from copyright infringement liability.
https://archive.org/details/LegalGeekEp55
Late last week, a three-judge panel in a New York federal court of appeals dismissed a lawsuit brought by an authors' guild against Google, claiming that the copying and digital storage of copyrighted books and other works in the Google Books program was copyright infringement. Just like the lower courts, the Appeals Court determined that Google Books is fair use under copyright law.
The current era of copyright law in the courts is one of reducing rights, as fair use continues to be more and more expansively interpreted. This is possible because fair use is a four factor balancing test which is a very gray area and always fact based. Judges can sometimes bend the facts to fit the factors in the way necessary to end up at a desired result, and some powerful lobbies like the Electronic Frontier Foundation are working to keep the ball rolling towards bigger fair use and less useable copyright enforcement rights.
Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.
That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.
So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.
Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.
But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.
Until next time, keep your fair use factors handy, and your Google tools also!
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.
That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.
So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.
Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.
But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.
Until next time, keep your fair use factors handy, and your Google tools also!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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