Google’s library survives lawsuit

A DECADE ago, Google announced plans to scan and make searchable the world’s books, and it has been fighting lawsuits from authors and publishers ever since.
After a seven-year legal battle, in 2012 the major US publishers reached a settlement with Google that allows them to keep copyrighted books from being displayed. On October 16, the US Court of Appeals for the Second Circuit upheld a lower court ruling in favour of Google and against the Authors Guild, meaning writers cannot stop the search giant from adding their work to its online library of more than 20-million books.

 
The saga has had enough twists and turns to fill a — well, you know.
"Google’s unauthorised digitising of copyright-protected works, creation of a search functionality and display of snippets from those works are noninfringing fair uses," Judge Pierre Leval wrote in the appellate decision.
Even though the company stands to profit from the project, its digital library is different enough and its excerpts limited enough in comparison with the original books that it does not need to license the material, Leval says.

Google spokeswoman Gina Scigliano says: "We’re pleased the court has confirmed that the project is fair use, acting like a card catalogue for the digital age."
Authors Guild executive director Mary Rasenberger says the guild is appealing to the US Supreme Court.
In practical terms, Google’s book-scanning endeavour, once considered a project of absurd scope and ambition, has come to seem part of the internet.
But the effects of the decision could be felt far beyond the publishing business. In his ruling, Leval wrote that making digital copies for the purpose of online searches amounted to "transformative use". Although there are four factors courts use to determine whether something qualifies as fair use, the transformative standard weighs the extent of a work’s repurposing more than its copyright holder’s potential licensing losses.
Leval pioneered the transformative use standard in 1990 in a vastly influential law review article, Toward a Fair Use Standard. In 1994, the Supreme Court referenced his article in its last major decision about fair use, Campbell v Acuff-Rose Music, which had the effect of allowing rap group 2 Live Crew’s sampling of Roy Orbison’s song Pretty Woman.

Years later, the transformative-use standard led courts to declare that search engines can show thumbnail images without licensing them.
Because the Leval decision accepted Google’s framing of its books project as a research tool, "it seems like an extension of Campbell", says Christopher Sprigman, a professor at New York University School of Law.
Media companies struggling to shift online are worried about the spread of the transformative-use standard from artistic expression, such as a musician’s sampling, to a massive undertaking, such as Google Books.
Leval’s ruling acknowledges that the Google Books case "tests the boundaries of fair use". Sprigman says it is likely to encourage technology companies to try to test even further limits, especially because it suggests that scale does not matter as much as how much a work is transformed. "This sets a precedent for a particular kind of activity," he says.
Even the transformative-use standard has limits, however, and Rasenberger argues that the appeals court’s decision may have exceeded them.
"We like Google Books. We just think authors ought to get paid for those uses of their work," she says.

Bloomberg