Authors Guild v. Google Inc. Highlights Copyright vs. Fair Use Issues

May 10, 2012

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Our contingency business litigation lawyers have been watching with interest the developments unfolding in the case brought against Google Inc. by writers and authors with the Authors Guild (Authors Guild v. Google Inc.).

The core issue in this business litigation is the difference between copyright infringement and fair use, as it pertains to intellectual property. Back in 2004, Google, in its effort to provide more information to users who utilize its search engines, announced plans to scan digitally portions of text from books obtained in university and public libraries. The following year, the Authors Guild sued.

Google says the portions of the text that it offers are covered under the Fair Use section of U.S. copyright law, which falls under U.S. Code Title 17. This law is fairly in-depth, but there are a few considerations that are made when determining whether there has been copyright infringement:

1. The nature of the original work;
2. The character and purpose of the reproduction, including whether the person reproducing it is doing it for educational/non-profit uses or whether it's of commercial value;
3. How much of the work is reproduced, in relation to the length of the original work;
4. The effect of that use as it pertains to the value of the original work.

This is one of those cases where the courts haven't quite caught up with technology. Look in particular at No. 2. While Google's search-engine offerings do provide a clear educational value to the public at-large, the company at the same time is for-profit, and the more clicks or "hits" they receive, the more advertising revenue they can command.

Last year, the company reached a $125 million settlement with the Guild. However, that agreement was rejected by the U.S. Circuit court judge. The two sides have been unable to find an agreeable middle ground ever since.

Now, Google is asking the court to break up the class action status of the plaintiffs, thereby dismissing this case altogether.

However, the Guild is arguing that to do so would be a tremendous burden on the court system. A class action suit, they said, would be the most effective route - and as our contingency business litigation attorneys know, the method most likely to garner a success for them.

Google's lawyers argue that the authors don't actually have a right to that work, as in most cases, those rights were signed away to the publishers. What's more, the attorneys say that Google's excerpts have actually equated to an economic benefit to the plaintiffs. More people having access to a portion of the works means more people may be interested in seeking the entire product.

The judge in this case has said the two sides can ask to have their case heard solely by him, but the authors want a trial by jury. The judge is expected to make a decision on which way to proceed in September.

A similar lawsuit has also been lodged against Google by visual artists. Google said it's still talking with publishers of these works to possibly determine a settlement with them. That could have a big impact on the case if it's determined the authors don't actually own the copyrights to their own work.

According to the Internet search giant, some 20 million books have been scanned, and English excerpts are available for more than 4 million of those titles. It started when a handful of high-profile universities and libraries began digitizing their collections.

The Ferraro Law Firm provides comprehensive legal services, including business litigation on a contingency-fee basis. Call 1-800-275-3332 for a free and confidential consultation. Offices in Miami, Washington, D.C., and New York City.

Additional Resources:
Google Argues for Dismissal of Authors' Book-Scan Lawsuit, By Don Jeffrey, Bloomberg

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