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Google Books Wins|Fight Over ‘Fair Use’

MANHATTAN (CN) - In a case that "tests the boundaries of fair use," Google prevailed in the Second Circuit on Friday against claims that its search engine accessing snippets of tens of millions of digital copies of books breached copyrights.

"Today's decision underlines what people who use the service tell us: Google Books gives them a useful and easy way to find books they want to read and buy, while at the same time benefiting copyright holders," Google said in a statement. "We're pleased the court has confirmed that the project is fair use, acting like a card catalog for the digital age."

The Author's Guild's executive director Mary Rasenberger expressed her disappointment that the circuit did not reverse what she called a "flawed interpretation of the fair use doctrine."

"America owes its thriving literary culture to copyright protection," she said. "It is because of that success that today we take copyright incentives for granted, and that courts as respected as the Second Circuit are unable to see the damaging effect that uses such as Google's will have on authors' potential income."

Friday's ruling continues the guild's trend of unsuccessful litigation to curtail the free dissemination of information over the Internet.

Indeed one year earlier, the same Second Circuit panel rejected the guild's bid to shutter Hathitrust, a database that disseminated the collections of more than 80 university and research libraries.

Writing for the court in that case, Judge Barrington Parker had praised Hathitrust as an "invaluable contribution to the progress of science and cultivation of the arts."

Six months later, Parker and his colleagues met to decide whether the for-profit Silicon Valley powerhouse Google could benefit from the same reasoning that helped the educational nonprofit.

They unanimously answered that question in the affirmative Friday.

"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 for the court. "The same is true, at least under present conditions, of Google's provision of the snippet function."

Leval, who has spent nearly four decades as a federal jurist, is well known for his commentary on copyright law and has authored the influential law review article "Toward a Fair Use Standard."

Noting this reputation, Josh Schiller with Boies, Schiller & Flexner said Leval's holding should be "carefully read not just be law students in the United States but all over the westernized world," as other countries begin to grapple with "these fundamentally important principles."

"In recognizing that Google Books is fair use, Judge Leval reminds us that each case must be considered on its facts and articulates how considering arguments that a second work has a transformative purpose requires complex thought and investigation," said Schiller, who also won a significant fair-use ruling in the same courtroom three years ago.

In that case, Schiller convinced the Second Circuit that artist Richard Prince's "Yes Rasta" works did not infringe upon the copyrights of French photographer Patrick Cariou. The magazine Art in America described the case as a "landmark" ruling for fair use.

Though the Author's Guild has already announced plans to appeal the decision to the U.S. Supreme Court, Schiller called it unlikely that the high court would take a petition because "this case keeps consistent the law of fair use among the circuits."

During December's hearing, the Author's Guild's attorney warned about the possibility that a hacker could breach Google's database to disseminate the digital books for free.

The Second Circuit found that, while this fear may be "theoretically sound, it is not supported by the evidence."

Google maintains the "same impressive security measures" to guard its books that it uses for its own confidential information, the panel noted.

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