Google Books legal epic moves to appeals court

Google won at the district court level last week, but the Authors Guild isn't giving up

By , IDG News Service |  IT Management

After almost a decade of litigation, Google scored a victory last week over the Authors Guild, which had sued the company for copyright infringement over its Google Books search engine. But a few important chapters in the legal saga have yet to be written.

The Authors Guild will appeal last week's decision from the Southern District of New York, which concluded that Google Books is protected by the fair use doctrine. Legal experts are sharply divided over the decision, with some seeing it as common sense and others puzzled by it.

"I was surprised. I wasn't expecting this outcome," said Hillel Parness, an intellectual-property litigation partner with Robins, Kaplan, Miller & Ciresi in New York, which filed amicus briefs with the court supporting the Authors Guild.

Meanwhile, Jonathan Band, a Washington, D.C., attorney whose client the American Library Association backed Google, said the decision was expected and consistent with fair use rulings. "I was pleased with the decision," he said.

The basic facts aren't in dispute: Google has scanned more than 20 million books provided to it by libraries, stored them on its servers and made their full text searchable on Google Books. It has also provided digital copies to the libraries.

Google never sought permission for the service from copyright owners, and it was sued in 2005 by the Authors Guild and by the Association of American Publishers, which later settled with the company.

Google's defense has been that its search results only display "snippets" of text from books that it copied without permission, but the Authors Guild argues that the company violated copyright law.

In his decision last week, Judge Denny Chin said that Google's use of the copyrighted works was protected for several reasons, chief among them that it helps "advance the progress of the arts and sciences."

Its use of the copyright works is also "highly transformative," according to Chin, which is another standard for fair use. It implies the finished product adds something new that was not found in the original work. Google Books turns the text into "a comprehensive word index," Chin wrote, that helps readers, scholars and researchers find and identify books.

At the same time, the service doesn't supplant the books because it can't be used to read them, he found. As well as showing only snippets of text, it blacks out portions of books from appearing in results so that the system can't be gamed, according to the judge.

But Parness finds it problematic that to maintain its service, Google must maintain exact, persistent copies of the books on its databases. "The judge focuses on the snippets instead," he said.

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