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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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

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  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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