US Court Holds Google’s Book Digitisation is ‘Fair Use’

April 2, 2013 | Copyright Advocacy

On 14 November, Judge Denny Chin held that Google’s digitisation of millions of books was ‘fair use’ under US copyright law.

The decision (available here) is the latest development in the protracted legal process since authors and publishers initially took legal action against Google in 2005.

Authors’ and publishers’ representatives reached a ‘class action’ settlement agreement in 2008, which would have delivered payments to authors and publishers (the ‘Google Book Settlement’). The agreement was, however, rejected by Judge Chin in 2011 (see also here). Judge Chin encouraged the parties to develop a proposal based on ‘opt-in’ rather than ‘opt-out’.

The Association of American Publishers (AAP) subsequently reached a settlement agreement with Google, for five AAP members, that did not require court approval.

The Authors Guild proceeded to develop an ‘opt-in’ proposal for approval by the court.

In 2012, Google applied to the US Second Circuit Court of Appeals, seeking to overturn Judge Chin’s approval for the Authors Guild to proceed with a class action.

In July 2013, the Court of Appeals held that any decision about whether the Authors Guild could represent a class of authors should come after a determination about whether Google’s activities were allowed by the ‘fair use’ exception. The was sent back to Judge Chin to make that determination, which he has now made in favour of Google.

The Authors Guild has announced that it will appeal the decision.

COMMENT

The decision is significant for Australia, because of a proposal by the Australian Law Reform Commission that Australia¬†introduce a ‘fair use’ exception similar to that in the US. The longstanding litigation in the US is an indicator of the concerns by authors and others about the capacity for fair use to be employed by online giants such as Google.

It is also worth noting the Google Book Settlement indicated a willingness by authors to allow the project to proceed, provided there were arrangements for fair compensation. The case perhaps highlights the limitations of the US legal environment to enable an arrangement that both facilitates the undoubted benefits of Google Books with some provision for the creators of the books.

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