Judge Chin Appears to Bolster Google’s Fair Use Claim

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In the latest chapter of the Google Books saga, Judge Denny Chin has given Google some cause for optimism.

As regular readers of the 1709 Blog will remember, the Authors Guild sued Google in 2005 over its plan to digitize more than 20 million books. The Authors Guild maintains this infringes copyright in many works, but Google counters that the reproduction of copyrighted material is fair use. Google claims that their digitization provides great benefit to the public and researchers, that there is no evidence of market harm to copyright owners, and that their use is transformative as it only allows consumers to access “snippet” views of copyrighted material. In July 2012, after a controversial settlement plan failed, the parties filed cross motions for summary judgment. On Monday, the US District Court in New York heard the oral arguments.

It took Judge Denny Chin only 40 minutes to hear the arguments, and during this time he appeared to favor Google’s fair use claim. Chin repeated the many public benefits that Google Books provides, noting that even his law clerks use it to perform citation checks. He also acknowledged amicus briefs from libraries and humanities professors that support the benefit the project has for researchers. Given these arguments, he posed a question to Author Guild attorney, Ned Rosenthal: “aren’t these transformative uses, and don’t they benefit society?” When Rosenthal argued that the project may lead to lower compensation for authors, Chin noted examples where people had bought works after finding information about them through Google Books. When Rosenthal argued that this was a matter for Congress, Chin quipped: “[d]oes anything get done in Congress these days?” He later followed this by asking Rosenthal: “[w]hat are you suggesting? That I don’t decide…and wait for Congress?”

The case now appears, after eight long years, to be heading towards resolution.