October 26, 2015
In the latest page of Google’s decade-long saga to scan the world’s books and make them searchable, the company won a case that decided in its favor and against the Authors Guild, on whose behalf the Motion Picture Association of America and the music licensing organization ASCAP filed amicus briefs. The October 16 ruling by the Court of Appeals for the Second Circuit means that writers cannot stop Google from adding their books to Google’s 20-million book library, which the Court calls “non-infringing fair uses.”
According to Bloomberg, Judge Pierre Leval — who pioneered the “transformative use” standard in 1990 — stated that making digital copies for the purposes of online search amounts to transformative use, which “weighs the extent of a work’s repurposing more than its copyright holder’s potential licensing losses.”
Leval notes that even if Google profits from its digital library, the library is “different enough and excerpts limited enough in comparison to the original books that it doesn’t need to license the material.”
“If scanning all the books in the world and making parts of them available is fair use, you could do this with movies or music or television,” responded Authors Guild executive director Mary Rasenberger, who reports the Guild is appealing to the Supreme Court.
New York University School of Law professor Christopher Sprigman, who specializes in intellectual property, notes that the ruling appears to be an extension of the 1994 Supreme Court case Campbell v. Acuff-Rose Music, which allowed rap group 2 Live Crew’s sampling of Roy Orbison’s song “Pretty Woman.” More recently, a federal district judge in New York ruled that TVEyes video service could record and index clips from Fox News.
Sprigman notes the ruling on Google Books “tests the boundaries of fair use” and “sets a precedent for a particular kind of activity.”