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Judge finds Google's book project 'transformative'

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Indiana Lawyer Focus

Copy a book, make most of its contents available to the public, and you can soon expect to learn about the finer points of infringement.

But, when Internet-giant Google copied more than 20 million books without the authors’ consents and posted a majority of the text online, a federal judge found the effort constituted fair use. Readers heralded the decision as a victory.

mckenna McKenna

Within the legal community, attorneys applaud the ruling as clearly expressing a definition of “transformative” that the Supreme Court of the United States established nearly 30 years ago. Specifically, Circuit Judge Denny Chin, sitting by designation on the U.S. District Court for the Southern District of New York, recently held that Google, through its Google Books project, changed the purpose of the books.

Chin issued his opinion in The Authors Guild, Inc., and Betty Miles, Joseph Goulden and Jim Bouton v. Google, Inc., 1:05-CV-08136, Nov. 14.

“I think Google Books is a good thing for authors,” said Mark McKenna, associate dean at the University of Notre Dame Law School, adding only a very small number of writers have suffered a negative impact from the project. “Especially with academic authors, it would be hard to find anyone upset about Google Books.”

Since 2004, the company has been scanning and making digital copies of entire books as part of its Library Project. Participating libraries can then obtain a digital copy of books from their collections. Google also keeps a digital copy and creates an index of all the scanned works, enabling users to search for a word or phrase and get a list of the most relevant books containing the search term.

Library patrons can be directed to libraries or booksellers who have copies of the work. Also, Google makes available snippets of the text.

In considering the four factors of fair use as set forth in the Copyright Act of 1976, Chin gave the most weight to the “purpose and character of use” factor. He found that Google’s digitization of the text enables researchers to identify and search through books, an innovation which the judge said has transformed the written word.  Google Books is “highly transformative” because it uses the snippets to direct readers to other books. It turns the text into data, allowing readers to analyze and find patterns across millions of books.

This interpretation of “transformative” breaks with the tradition of the courts in finding fair use. Usually the fair-use ruling is given to works that have turned the original creation into something different such as through parody or satire. In this instance, Google did not alter the books but changed the way the books can be used or changed their purpose.

Christopher Brown, partner at Woodard Emhardt Moriarty McNett & Henry LLP, called the opinion “refreshing” because it takes a holistic view. Here, Brown said, the judge felt Google was not trying to make a profit but rather trying to advance the scientific and useful arts. The focus was more on the benefit to society and less on the commercial impact to authors.

Chin’s finding that Google changed how books are used is a “pleasant development” in the definition of “transformative,” McKenna said. The U.S. Supreme Court concluded that using a copy of an original work for a different purpose was transformative in Sony Corporation of American, et al. v. Universal City Studios, Inc., et al., 464 U.S. 417 (1984). But since then, other courts have not been as explicit until now.

While the court found Google’s indexing system to be fair use, Amy Berge, partner at Bingham Greenebaum Doll LLP in Louisville, argued the question that goes unanswered is whether Google infringed by reproducing millions and millions of books. The decision is too broad, she said, and leads to the logical conclusion that anyone can copy any work and make it available.

Moreover, she did not agree with the court’s position that Google did not make the entire work available. Google blacks out only 10 percent of each book. Also researchers, she said, do not typically read the whole book but use parts or sections. This means with Google, the readers can forgo a trip to the library or bookstore and get what they need at their computer. This takes away part of the market value of the books.

Berge noted the judge used his discretion in weighing the factors of fair use and cannot be said to have reached the wrong conclusion. However, the decision imposes a lot of uncertainty and upheaval for people who create.

Stretching copyright

When Brown meets with clients, he explains the two prongs of the copyright law. The first gives exclusive rights to authors and inventors over their works so, ideally, they will have an incentive to create more works. The second establishes fair use to give everybody else the incentive to create the next version of the original work or to move the debate along in some fashion.

“There are plenty of people that don’t appreciate the extent to which there are exceptions to copyright,” Brown said.

Too often, the patent attorney said, authors and inventors believe since they created something they are the only ones who should benefit. But the real basis of copyright law is that everyone benefits by allowing the initial creation to spur other creations.

Despite the confusion, Brown said the copyright law is working even as technology advances beyond what was imagined in 1976. The law has handled new technology in the past and continued to work just fine in the Google Books dispute.

Troy J. Cole, partner at Ice Miller LLP, agreed. The copyright law provides guidance to the courts as to what Congress thought was important. And it has been stretched to cover new technology such as when copyright was extended to software.

However, Berge said the Google case underscores the need for changes to the law. Technology can speed forward so quickly that before the courts can catch up, the advances become ingrained into public use. Then the assertion the infringement benefits the larger society becomes the prevailing concern.

As an example, Berge pointed to the patent infringement lawsuit against BlackBerry in the early 2000s. By that time, the mobile phones were in such wide use that even the federal government claimed taking the technology from BlackBerry would cause the public harm.

Changes to the law need to be made and should be made at the legislative level, Berge said. Google copied carte blanche, so the message to others is work as fast as you can then argue your product is helpful to society. Congress needs to weigh in on the issue, she said.

Google’s gain

Berge acknowledged Google did partner with libraries and educational institutions which have a broader scope of access to copyrighted works. The company’s motives may have been pure and truly seeking to benefit the greater good but, Berge noted, Google is getting a return even though it is offering the books for no charge.

“They get a huge benefit,” she said. “I’m going to search Google since they are the ones with all this information.”

Discerning why Google undertook this project is also intriguing to Cole. It is a savvy company so it might have seen a reward or payoff somewhere, he said. Possibly while the researchers are reviewing the book snippets, Google is watching them.

“You are the product,” Cole said.•

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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