We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s literature under Google’s auspices, was rejected, primarily due to antitrust concerns, the case came to center on the Google Books search engine, which allows full-text searching of unlicensed copyrighted books, but displays only small “snippets” as search results.

Last time we checked in, the Second Circuit Court of Appeals had decertified the plaintiff class, and ordered Judge Denny Chin to  rule on Google’s fair use defense first. As we noted,  the appellate panel’s “comments at the oral argument and its suggestion that resolution of fair use could ‘moot’ class certification strongly telegraph[ed] acceptance of Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.” Not surprisingly, in a 30-page opinion issued November 14, Judge Chin so ruled.




When last we checked in with The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, Judge Denny Chin had certified the case as a class action on behalf of all “persons residing in the United States who hold a United States copyright interest in one or more books reproduced by Google as part of its Library Project.” I suggested that this was a major milestone in the case, and that it cleared the way for Judge Chin to make some very important fair use law. At this point, the 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, a far cry from the universal digital library that Google had envisioned at the outset.

The Second Circuit Court of Appeals, however, then ordered that the case be stayed while it considered the propriety of the class certification. Yesterday, in a short per curiam opinion, the Second Circuit vacated the class certification and ordered that Google’s fair use defense be adjudicated first, because “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot . . many class certification issues.” Although the appellate panel, which included the father of the modern expansion of fair use through “transformative use” analysis, Judge Pierre Leval, did not address the merits of the fair use issue, its comments at the oral argument and its suggestion that resolution of fair use could “moot” class certification strongly telegraph acceptance Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.


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?



Could a university chemistry department routinely scan copyrighted scientific journals in their entirety to create an electronic, searchable database that puts their contents at the fingertips of professors and students, so they could use the data compiled by others in perfectly appropriate ways in their own scholarship?  I think the answer is clearly “no.”  As a result, most universities will subscribe, for a fee, to commercial databases that provide access to such materials under license from the publishers.  Is the answer different if the English department wishes to scan all newly published novels in their entirety, so that scholars engaged in “Digital Humanities” can more readily “understand individual texts, the connections between texts, and the evolution of literary language”?  That would seem to be the implication of an interesting but ultimately unavailing brief recently filed by a group of such scholars as amici curiae (friends of the court) in the Google Library Project case. (more…)


It has been seven years since The Authors Guild and some of its individual members first filed suit against Google, charging that its Library Project—to the extent it posted “snippets” of works still in copyright—constituted a massive copyright infringement.  Initially, Google welcomed the class action as a vehicle for negotiating a global settlement of such claims that would have, among other things, given Google the exclusive right to digitize so-called orphan works, millions of books still in copyright but not in print and for which the identity of the copyright owner could not readily be ascertained.  It was a breathtakingly imaginative and audacious use of the litigation process, “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court.”  But ultimately two negotiated settlements were rejected in the face of intense opposition, including antitrust concerns raised by the Department of Justice.  Now Google and the authors find themselves in an old-fashioned lawsuit.



I should, and will, be posting on Google’s mounting antitrust problems and on the status of its attempt to corner the book search market, but today I am utterly transfixed by the functional Moog Synthesizer that Google has placed on its home page, in honor of what would have been Robert Moog’s 78th birthday.  (What’s so special about round numbers anyway?)


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  • Gary A. Rosen

    Gary A. Rosen, a lawyer, has litigated copyright, patent, and other intellectual property cases for more than 25 years, and is a Lecturer in Legal Studies at the University of Pennsylvania's Wharton School. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr. He holds a degree in physics from Haverford College and graduated magna cum laude from the University of Michigan Law School. He and his wife Lisa, a physician, and their two children live outside Philadelphia.
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