Second Circuit Arguments in Google Books Case

Recently at the U.S. Court of Appeals for the Second Circuit, a lower court ruling that Google Books' digital library isn't copyright infringement came under attack.

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.

Smith is asking the panel to find that Judge Denny Chin erred last year when he ruled for the Southern District that copying and presenting books or “snippets” of those books do not violate the Copyright Act because it is a “highly transformative” use of the works. The Authors Guild Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).

District Court:'Google Books'Expands Access

Defending Google and Judge Chin's decision was Seth Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr, who said Google and the libraries collaborated for the mass digitization of works that did no damage to authors. “It's revolutionized the way people find authors and books,” Waxman said.

In 2011, Chin, a former Southern District of New York judge who elected to keep the case when he was elevated to the Second Circuit in 2010, rejected a settlement that he deemed inadequate in the case. But in 2013, Judge Chin found fair use, saying the Google Books library provided significant public benefits, in part by transforming “expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” Judge Chin praised Google Books for helping to expand access to underserved populations and preserve books. He also said it was a tool for librarians and fact-checkers and allowed scholars to analyze large amounts of data.

At the Second Circuit arguments, Paul Smith attempted to persuade Pierre Leval and fellow appellate Judges Jose Cabranes and Barrington Parker to reject Judge Chin's take on Google Books in The Authors Guild v. Google Inc., 13-4829. Smith said the database itself could be rightly viewed as a derivative work for which Google should be required to obtain licenses.

Microsoft had been digitizing a “substantial” number of books but had done so through a licensing program, Smith said, adding that Google decided not to use the licensing model when copying some four million books. He also said there was an emerging derivative market that Google Books could exploit while leaving authors out in the cold.

Concern over'Mass Copying

On this point, Seth Waxman countered that no evidence of any such market exists or any that is emerging. He cited the opinions of name authors who are plaintiffs in the suit: Betty Miles, Jim Bouton and Joseph Goulden. “The three name authors all testified that they have not lost the sale of a single book,” Waxman said. “They also testified that the [Google Books] snippet does not substitute for any of their books. There is literally nothing on the other side.”

Smith challenged that account. “The three name plaintiffs actually said, 'I have no way of knowing that I have been harmed.' They never said, 'I don't believe I've been harmed,'” Smith maintained.

The appellate panel judges all expressed concern that the libraries' digital copies might be mass copied and all three poked Waxman a bit for maximizing the public good stemming from the “transformative” use of the authors' works while minimizing the profit motive. Judge Cabranes said it would “be very odd for a corporation in the business of making money” to build this library “simply to be helpful.” Judge Parker said, “Google wants to help people find books is what [Waxman] told us.” Waxman conceded that Google may have hoped the library would bring more readers to its search website or to use Google Translate.

Judge Cabranes noted that the parties had come close to settlement and he asked Smith at the end what it was, exactly, that the plaintiffs wanted from the Second Circuit in a decision and on a possible remand to Judge Chin. Smith said he wanted the court to reverse Chin on his grant of summary judgment to Google. Given the passage of time, Smith said, he wanted the past copying to be monetized in the form of royalties and for Google to be required to obtain a license before starting any new scanning.

Mark Hamblett is a Reporter for The New York Law Journal, an ALM sibling of Entertainment Law & Finance.

Recently at the U.S. Court of Appeals for the Second Circuit, a lower court ruling that Google Books' digital library isn't copyright infringement came under attack.

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.

Smith is asking the panel to find that Judge Denny Chin erred last year when he ruled for the Southern District that copying and presenting books or “snippets” of those books do not violate the Copyright Act because it is a “highly transformative” use of the works. The Authors Guild Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).

District Court:'Google Books'Expands Access

Defending Google and Judge Chin's decision was Seth Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr, who said Google and the libraries collaborated for the mass digitization of works that did no damage to authors. “It's revolutionized the way people find authors and books,” Waxman said.

In 2011, Chin, a former Southern District of New York judge who elected to keep the case when he was elevated to the Second Circuit in 2010, rejected a settlement that he deemed inadequate in the case. But in 2013, Judge Chin found fair use, saying the Google Books library provided significant public benefits, in part by transforming “expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” Judge Chin praised Google Books for helping to expand access to underserved populations and preserve books. He also said it was a tool for librarians and fact-checkers and allowed scholars to analyze large amounts of data.

At the Second Circuit arguments, Paul Smith attempted to persuade Pierre Leval and fellow appellate Judges Jose Cabranes and Barrington Parker to reject Judge Chin's take on Google Books in The Authors Guild v. Google Inc., 13-4829. Smith said the database itself could be rightly viewed as a derivative work for which Google should be required to obtain licenses.

Microsoft had been digitizing a “substantial” number of books but had done so through a licensing program, Smith said, adding that Google decided not to use the licensing model when copying some four million books. He also said there was an emerging derivative market that Google Books could exploit while leaving authors out in the cold.

Concern over'Mass Copying

On this point, Seth Waxman countered that no evidence of any such market exists or any that is emerging. He cited the opinions of name authors who are plaintiffs in the suit: Betty Miles, Jim Bouton and Joseph Goulden. “The three name authors all testified that they have not lost the sale of a single book,” Waxman said. “They also testified that the [Google Books] snippet does not substitute for any of their books. There is literally nothing on the other side.”

Smith challenged that account. “The three name plaintiffs actually said, 'I have no way of knowing that I have been harmed.' They never said, 'I don't believe I've been harmed,'” Smith maintained.

The appellate panel judges all expressed concern that the libraries' digital copies might be mass copied and all three poked Waxman a bit for maximizing the public good stemming from the “transformative” use of the authors' works while minimizing the profit motive. Judge Cabranes said it would “be very odd for a corporation in the business of making money” to build this library “simply to be helpful.” Judge Parker said, “Google wants to help people find books is what [Waxman] told us.” Waxman conceded that Google may have hoped the library would bring more readers to its search website or to use Google Translate.

Judge Cabranes noted that the parties had come close to settlement and he asked Smith at the end what it was, exactly, that the plaintiffs wanted from the Second Circuit in a decision and on a possible remand to Judge Chin. Smith said he wanted the court to reverse Chin on his grant of summary judgment to Google. Given the passage of time, Smith said, he wanted the past copying to be monetized in the form of royalties and for Google to be required to obtain a license before starting any new scanning.

Mark Hamblett is a Reporter for The New York Law Journal, an ALM sibling of Entertainment Law & Finance.