Justices Write End to Authors' Challenge of Google Books

Since the project began in 2004 in cooperation with university libraries, Google has scanned more than 20 million books and incorporated them into its Google Book search engine.

The Second Circuit upheld a decision by then-New York Southern District Judge Denny Chin, who said that the company's project helped preserve books, gave underserved populations access to books and aided scholars to analyze large amounts of data. See, “Google's Mass Copying of Copyrighted Works Judged 'Fair Use',” in our December 2013 issue.

The Circuit agreed that the project has “a highly transformative purpose.”

“Google's making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about plaintiffs' books without providing the public with a substantial substitute for matter protected by the plaintiffs' copyright interests in the original works or derivatives of them,” Judge Pierre Leval wrote in a decision joined by Judges Jose Cabranes and Barrington Parker. See, “Second Circuit Affirms Fair Use: Author's Guild v. Google,” in our November 2015 issue.

In urging the High Court to review the Second Circuit ruling, Jenner & Block partner Paul Smith said the Google project amounted to copyright infringement “on an epic scale,” estimating that more than four million of the books scanned were still protected by copyright.

In response, Google asserted that its project constitutes fair use and “' in fact advances the interests of authors.” Former solicitor general Seth Waxman, partner at Wilmer Cutler Pickering Hale and Dorr, wrote the Google brief, claiming that it fits the requirement of the fair use doctrine that it be “transformative in nature.”

Users can search books they might not have otherwise known about, but cannot read substantial portions of the books without buying or borrowing them, Waxman said.

Copyright expert Jamie Bischoff, senior counsel at Ballard Spahr in Philadelphia, said that the court's action is “pretty definitive” and unsurprising, especially because the author of the Second Circuit opinion that was upheld was Leval, a copyright expert. Before joining the bench in 1993, Leval wrote an influential law review article on the fair use doctrine and the “transformative” standard.

Tony Mauro covers the U.S. Supreme Court for ALM, Internet Law & Strategy's parent company. He can be reached via e-mail at [email protected].