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Second Circuit 'Affirms Fair Use

By Robert J. Bernstein and Robert W. Clarida
November 02, 2015

On Oct. 16, in Authors Guild v. Google, No. 13-4829-cv, ___ F.3d___, 2015 WL 6079426 (Oct. 16, 2015) (Google), the U. S. Court of Appeals for the Second Circuit affirmed the holding of U.S. District Judge Denny Chin (sitting as a district court judge) that Google's mass digitization of more than 20 million books from major university libraries in order to enable users of the Google Books website: a) to conduct full-text searches to determine the appearance and frequency of particular words in the books contained in the entire database; and b) to view “snippets” from the books subject to existing limitations on their display, constitutes fair use. The Authors Guild v. Google, 954 F.Supp.2d 282 (S.D.N.Y. 2013). See, R. Bernstein and R. Clarida, “Google Granted Summary Judgment on Fair Use Defense,” New York Law Journal, Dec. 20, 2013, p. 3.

In a 48-page opinion by Judge Pierre N. Leval, joined by Judges Jose Cabranes and Barrington D. Parker, the court conducted a thorough review of fair use from its English precedents to the last three decades of Supreme Court fair use cases and their application to the digital age. (Note: Co-author Robert J. Bernstein served as local counsel to Google during an early stage of the district court proceedings in Authors Guild v. Google, but took no part in the summary judgment proceedings or appeal. Bernstein also served as co-counsel to defendant-intervenor National Federation of the Blind in Authors Guild v. HathiTrust, 902 F.Supp.2d 445 (S.D.N.Y. 2012), aff'd, 755 F.3d 87 (2d Cir. 2014), cited by both the district and appellate courts in Authors Guild v. Google.)

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