MANHATTAN (CN) – Profit motive aside, Google’s digital book database does not appear to be much different from the Hathitrust Digital Library offered to college students, a panel of 2nd Circuit judges seemed to agree at a hearing on Wednesday.
The Authors Guild has been unsuccessful so far in its attempts to have courts shut down digital databases that allow users to seek lengthy excepts of books that match their search terms.
In June, U.S. Circuit Judge Barrington Parker led the 2nd Circuit in rejecting the guild’s bid to shutter the Hathitrust database, which digitized and disseminated the collections of more than 80 university and research libraries.
The same three judges who presided over the Hathitrust case heard the Authors Guild’s challenge against Google Books on Wednesday.
Before the 90-minute hearing began, Judge Pierre Leval announced that the “extremely important and complex issues” at issue warranted giving both sides a half hour to speak, and he peppered both with the most questions throughout the arguments.
The guild’s lawyer Paul Smith kicked off proceedings by noting that Google, unlike Hathitrust, stood to gain “billions and billions of dollars every year” on the search engine.
But only moments after he made this point, Leval cut him off by stating, “There is no distinction to be drawn between commercial and non-commercial [use].”
Leval warned that Smith “would lose” the case if his argument was premised on the fact that “Google, like The New York Times, is a profit-motivated enterprise.”
It makes no difference that, unlike Google, the Times stands to gain “dwindling, small profits” as opposed to Google’s billions, he added.
Smith argued that Google’s business model prevented authors from licensing their books to companies like Microsoft, which he said was creating a licensed database before Google Books arrived.
“The test is not how transformative is the use,” Smith said. “The test is this the type of use that would be licensed.”
Strongly disagreeing with that point, Leval said. “You’d always find someone who would be willing to pay [a licensing fee] to avoid a lawsuit.”
Google’s lawyer Seth Waxman was quick to highlight what he described as the database’s benefit to society.
“The uses at issue in this case quintessentially promote the advancement of the sciences and the useful arts,” he said as he began his argument.
Waxman noted that Google paid more than $125 million on it.
Drolly stating that he was loath to turn the conversation to something “as vulgar as money,” Judge Jose Cabranes pressed the lawyer to admit that Google had a “substantial profit motive” in the technology.
The cautious Waxman agreed only “arguendo” that the judges could assume that was true.
Google Books avoids copyright violations by only allowing users to read portions of books that match their searches, but the Authors Guild raised the possibility of hacker disseminating the digitized books in full.
Waxman emphasized that this has never happened in the history of Google Books.
In rebuttal, Smith said that he mentioned this concern in light of “an MIT student” distributing academic articles from a university database because he believed, “Information should be free.”
This was an apparent reference to the late freedom of information activist Aaron Swartz, who committed suicide facing 30 years imprisonment and $1 million in fines for doing exactly that.
The allusion to that tragedy ended arguments in the Google Books case, as the judges reserved decision on the matter.
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