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Google Library Book-Scanning Project Is Fair Use

By Jonathan R. Tung, Esq. on October 16, 2015 | Last updated on March 21, 2019

More than a decade ago, Google announced what, at the time, seemed like an unbelievably ambitious extension of Google Print: it would create a massive online library of 15,000,000 digitally scanned books. We all know now, however, not to underestimate Google.

The project did raise the ire of a number of copyright holders and lawyers who claimed the project was a massive copyright violation and two suits followed. Well, the Second Circuit just sided with Google and ruled that the Google Books Library Project had met all the elements of "fair use."

When Google embarked on its book-scanning project, everyone expected lawsuits to follow: it was almost a categorical given.

One year after the company announced the project, two lawsuits were filed in 2005 on behalf of various copyright interests holder who claimed that Google's project amounted to "massive copyright infringement."

I See Your "Infringement" and Raise You "Fair Use"

Normally, as with any intellectual property claim, the author or inventor retains exclusive rights. In the world of copyright, fair use is the applicable safe harbor.

The Second Circuit was persuaded by Google's defense that the Google Books Library was an appropriate usage of the copyright fair use protection and dismissed the petition, essentially upholding Judge Chin's lower court ruling that Google Books advanced "the arts and sciences, while maintaining respectful consideration" for the authors without negatively impacting the rights of the holders. The three-judge circuit court agreed that Google acted lawfully, but that the project did "test the boundaries of fair use."

A Close Call

A ruling in favor of the plaintiffs could have been very expensive for Google. Google representatives claimed that an adverse ruling would have cost the company billions. But the unanimous ruling acts as a guidepost for future reference.

Google Books works by providing "snippets" of authors' works in context -- "designed to show the searcher just enough context surrounding the search term" to be of use to the searcher, but without violating the author's copyright interests, said Judge Pierre Leval. It seems that the court inclined toward the idea that Google Books operated like a digital card catalog and stayed within lawful bounds.

Some have said that this ruling is hardly a surprise since the Second Circuit had dismissed another lawsuit, also by the Guild, in which it was claimed that a group of universities and libraries had built an online searchable database made up of millions of scanned papers.

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