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Second Circuit 'Affirms Fair Use
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.)
What emerges from this scholarly journey is the court's conclusion that the research uses enabled by Google Books serve copyright's ultimate goal to advance knowledge and learning, and are circumscribed so as to avoid market harm to plaintiffs. But equally important, the court emphasized throughout the opinion that its analysis was based strictly on its detailed exposition of the facts and circumstances of record, implying that broader uses would be subject to careful scrutiny under each of the fair use factors and their overall balance.
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