Second Circuit Arguments in Google Books Case

Attorney Paul Smith, arguing for the Authors Guild appellants, asked the three-judge appellate panel to find that Google's “mass reproduction and mass display” of millions of books, as well as its distribution back to libraries of digital copies that the libraries owned, was wrongly held by the Southern District of New York to be fair use under the Copyright Act. Smith, a partner at Jenner & Block, said Google's copying, as well as its presentation of “snippets” ' sections of the works alongside information telling perusers where they can buy the books ' was “quintessentially commercial in nature” and was done “to preserve its crown jewel, its server engine” that earns it billions of dollars.

But Smith was checked by Second Circuit Judge Pierre Leval, who said that, in his view, it was not useful to distinguish “between commercial and noncommercial” motives behind copying when determining fair use. Judge Leval said he would be “surprised” if Smith won his case by pointing out that Google, like The New York Times or other newspapers that reprint and quote other works every day, was out to make money.