Google Wins Ruling in Digital Book Scanning Lawsuit

By Todd R. Weiss  |  Posted 2013-11-15 Print this article Print

Another analyst, Rob Enderle, the principal analyst of Enderle Group, told eWEEK in an email response that Chin's decision suggests he "thinks that content owners are going too far to protect content and that fair use can be applied here to protect Google."

The original idea of fair use was "never intended to destroy the content's value, but neither was it intended to allow content owners to profit from every aspect of their creation," wrote Enderle. "That means a balance must be maintained by the courts and, in this instance, the courts favored user rights over content owner rights.  I think the Authors Guild basically failed to show adequate harm and the argument that the majority of the use for this activity has no impact on the purchase of books, most of which were perceived to be languishing unread in libraries."

That makes sense, because "as long as you aren't putting the book in readable form online, thus eliminating the need to buy the book, fair use should hold and that appears to be the ruling in this instance," wrote Enderle. "This ruling will likely have broader implications for content because it potentially strengthens the successful use of fair use as a defense substantively."

Google began digitally scanning some 20 million books back in 2004 so that Web searchers could find sections of them in searches, according to an earlier eWEEK report. The practice was quickly and vehemently opposed by critics, who argued that the practice is copyright infringement without payment. The battle has been in the courts since 2005, with at least two proposed settlements coming and going since 2009. The case was heard again this past September, which resulted in Chin's latest ruling.

Google lawyers have consistently argued that the fair-use provision of the Copyright Act shields it from liability for infringement. Google had argued that the materials are an extension of fair use, while opponents argued that the scanning amounted essentially to theft of the materials.

Google faced more than $3 billion in potential damages if it was found guilty of scanning the materials illegally.

The first proposed settlement came back in 2008 between Google and opponents, but Chin ultimately rejected it, according to a previous eWEEK report. Chin, who was also the judge in that case, ruled at the time that the proposed agreement would give too much power to Google at the expense of competitors. The U.S. Justice Department said the deal might violate antitrust and copyright law, which prompted Google to revise that original settlement in November 2009.

Another settlement attempt came in September 2011, but it again did not succeed. Google and the plaintiffs had been at the bargaining table since March 2011, when Chin struck down a deal that would let the search giant scan and store millions of "orphaned" works. Orphaned works include titles that are out of print and whose authors can't be found or are unknown. Chin said then that the deal "would give Google a de facto monopoly over unclaimed works" and deemed it unfair to rights' holders whose copyrighted works would be served online without their permission.


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