Guest Post: Google Books in the Clear: The Appeal Process a Mere Formality?

spicyfellowship2We’re happy to bring you the 1st entry selected for our SpicyIP Fellowship applicant series! Aabhas Kshetarpal is a 4th year student at NLU, Jodhpur. In this post, he looks at the current status of the ongoing Google Books Library Project case and brings forth an interesting, even if possibly presumptive opinion that the bench seems to have already shown what direction they’d be taking with this case. Read on for more. [Readers interested in finding out more details about our SpicyIP Fellowship applicant series can click here.]

Google Books in the Clear: The Appeal Process a Mere Formality?

By: Aabhas Kshetarpal

Google has incurred the wrath of copyright holders’ with regard to two of its most popular services, Google Books and Google News. The controversy regarding copyright violations by Google Books revolves around the three sentence “snippet” of a book that the search engine reproduces, subject to the search query entered by the user. The 2nd Circuit U.S. Court, in 2013, dismissed a lawsuit filed by Authors Guild, alleging copyright violations by Google (see detailed post by L. Gopika). An appeal was subsequently filed against this decision. This post will discuss the fate of the said appeal, in view of the hearing on 3rd December, 2014.

Google has a global vision of making all prominent books in the world available for a free text search. In pursuance of this, it has thus far contracted to scan significant portions of the print collections of the various libraries of several elite universities. This vision, however, is subject to certain limitations imposed by copyright law. With regard to books that were published after 1922, thereby being subject to the framework of the current U.S. Copyright Law, users can access only a three-sentence ‘‘snippet’’, which would include the search query and the sentence before and after that sentence, together with the book’s bibliographic information. This, however, is limited to a 9 line per book ceiling, regardless of the frequency of the occurrence of search terms.

The commencement of this service was met by the initiation of legal proceedings by copyright holders alleging a violation of their copyright in the books. Judge Denny Chin, of the 2nd Circuit U.S. Appeals Court, in 2013, dismissed such a lawsuit filed by Authors Guild. The Court concluded that the Google Books initiative was “highly transformative”, and accordingly, would fall within the ambit of “fair use” in copyright law.

On the 3rd of December, 2014, the Manhattan Court heard arguments by the Authors Guild, which sought to overturn the impugned decision by way of an appeal. Two broad arguments were put before the Court (elaboration available here). First, that the Google Books project could be distinguished from the case of HaitiTrust, where digitalization of academic material was held to be fair use, in view of the fact that Google was turning a profit out of the project. Secondly, that the project caused detriment to the authors by undercutting the market for digital licencing, by way of which, they could earn profits.

Judge Pierre Leval, who was on the bench, stated that the argument with regard to the commercial nature of the Google Books project would fail to hold water in light of the fact, that most classic fair use cases were based on activities that were commercial in nature. With regard to the loss caused to authors, Justice Leval remarked that there was still a possibility of licencing, and, in any case, the loss caused to authors in such a manner could not preclude fair use.

Even though the detailed opinion of the Court in the appeal is expected only in the early months of 2015, the approach of the bench does not seem to favour the appellants. It may also be relevant to note here that, Justice Leval, the most vocal of the judges in the said hearing, had authored an article which takes an extremely liberal approach to allowing fair use, in the Harvard Law Review in 1990. The opinions harboured by Justice Leval seem to be apparent in the said article.

The ramifications of such a judgment on the Indian IP landscape, have been elaborated upon by Prof. Shamnad Basheer in his post which can be found here. In view of the fact, that the decision would bind Indian authors with respect to the copyrights in the United States, the Indian Reprographics Rights Organization, has been raising objections to the liberal approach. Further, even though aggrieved Indian right holders will have a right to sue for copyright infringement in India, the decision is likely to set a global “fair use” standard which will be extremely hard to negate. The implications of this verdict would also be amplified, considering the nature of service being provided by Google, which necessitates international harmonisation of the “fair use” doctrine.

The question that begs to be answered here is as to whether the equation of the reproductions such as the one appearing in New York Times (one of the illustrations taken by Justice Leval) to the case of Google Books, would be justified? A glaring difference that must be noticed is that the reproductions in news articles, or any other form of literature, necessarily involves a commentary, criticism or value addition to the reproduction. Therefore, bearing in mind the jurisprudence on fair use, including the decisions relied upon by the Court, mere reproduction in the absence of any value addition would not constitute fair use in such a profit-making scenario. In the case of Google Books, there is not a shadow of doubt with regard to the fact that there is no value addition that is being made to the book.

Will the Court notice the fact that there is an apparent difference between the traditional jurisprudence on fair use and the case at hand? The only question one may venture to answer at this moment is, that the approach of the bench in the discussed hearing seems to be a bad omen for things to come for Authors Guild.

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