We were waiting and watching for what promised to be a landmark fair use decision from Judge Denny Chin in the Google Library litigation when the case was stayed while its certification as a class action was appealed.  In the meantime, a companion case before Judge Harold Baer, The Authors Guild v. Hathitrust, involving a consortium of universities that are cooperating with Google and using its digitized copies of books for their own purposes, moved along rather quickly.   On October 10th, Judge Baer handed down a decision upholding the universities’ fair use defense, and it is being touted as a harbinger of ultimate victory for Google.  Is it?

I think not.  The decision of one district court judge is not binding precedent for another (although Judge Chin is now on the Court of Appeals, he continues to preside over the Google Library case as a district judge), and I doubt that Judge Chin will give particular deference to a coordinate judge on what has become the central issue in his signature case.  Nor, frankly, does Judge Baer’s opinion display the depth of analysis for which Judge Chin is admired.  Most important, though, the issues are quite distinct.

Hathitrust is a consortium of universities which have permitted Google to scan books in their collection and in return receive digital copies which they use for providing full-text searching capability and access to the vision impaired.  Full-text search results of non-public domain books do not display any portion of the copyrighted work, but rather just identify the pages on which a search term is found.  Hathitrust calls this the “Mass Digitization Project.”

The plaintiffs argued that Hathitrust’s fair use defense was in effect pre-empted by Section 108 of the Copyright Act, which provides libraries and archives a number of exemptions and safe harbors from liability for reproducing copyrighted works for such purposes as preservation, inter-library cooperation, etc., but not for full-text searching or access for the blind.  Judge Baer, I think, gave this argument somewhat short-shrift, relying on a provision in Section 108 that states it does not limit fair use rights.  This strikes me as a category mistake; Hathitrust’s use of digital reproductions seems much more like the type of things covered by Section 108 than things previously recognized as fair use, which is usually not carried out “en masse.”  Congress is better situated to strike the right balance between copyright and legitimate needs of libraries, as it did in Section 108, which imposes some rather significant restrictions and limitations on the reproduction rights granted.

At this point, the Google Library case centers on the internet display of “snippets” (roughly 1/8 of a page) of copyrighted books which Google has digitized (without the consent of copyright owners) in response to search engine requests.  Regardless whether Judge Chin would agree with Judge Baer regarding Hathitrust’s use of the digitized copies, it does not seem dispositive of the issues raised by Google’s use.

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