By Tarunika Rajesh, Law College Dehradun, Uttaranchal University.

Copyright laws are a wide, all inclusive, dynamic and developing segment of the Intellectual Property Rights, which is under thorough scrutiny and examination for trying and striving hard towards creating a balance between the liberties and freedom of people involved in the capacity of a writer, publisher, artiste, etc., to ensure that not only are their rights protected but to make certain that they possess the independence to publish, express themselves in any form or manner through any medium. Recently, popular web based search engine Google was mired in a legal controversy that drew a conclusion in 2014. Being one of the most popular search engines worldwide, Google has served multiple purposes that have ranged from providing services such as:

  • defined web based services including specialized searches through articles, blogs, videos, images and several other mediums
  • to serve,  cater and function as a social networking medium, provision of organization, chat networking tools,  [1]

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In view of the fact that after the onset of wider outreach of the World Wide Web, Google under its Google Books Library Project had initiated a collective effort by Google to scan and make searchable the collections of several major research libraries. The project, along with Google’s Partner Program, comprises Google Books (formerly Google Book Search)[2], through which it was aiming towards cooperating with libraries all across the globe to digitize books and create massive, publicly available and searchable books databases for the benefit of millions of users who can search this established ­database, which includes millions of works available at the typing of simple keywords  that began when Google announced in 2004 that it was partnering with several research universities and libraries around the world to use their  library collections for uploading on their website under the Google Library Books Project which would then make the digitized copies of such partner libraries  available for search online. Till date, Google has scanned over more 12 million books; available for search by users on their search engine. Such search results include titles, page numbers and small snippets of text that has in whole   become a valuable tool for students, readers, librarians, scholars, and amateur researchers of all kinds aiding in the dissemination of knowledge directly leading to the spread of education among all without any difficulties.

  • History of the Case: In this 8-year old legal case, the Author’s Guild had (The applicants / plaintiffs) initiated the case against Google. In 2005 The Author’s Guild of America along with the Association of American Publishers separately sued the legal entity of Google, referring to “Copyright infringement.” In their plea. Google responded to the allegations raised by the plaintiffs by stating that its Google Library Project represented ‘Fair Use’. The lawsuits of the plaintiffs was then merged which was followed by an extensive 3 year negotiation period that resulted in a settlement that received disapproval on an array of grounds from all corners ; including antitrust, privacy, and inadequacy of the proposed amount being offered by Google to the classes of authors and publishers whose books would be open to not only  publication of snippets and excerpts but publication of the complete work of the writer/author without any further permission requirement.  The settlement was eventually rejected by the applicants due to lack of unanimous acceptance by the authors wherein many amongst them demanded their removal in association with this case .The Authors Guild continued its case, and in 2011 their proposed class was certified and accepted by court. Google appealed against the decision by asserting the inadequacy of the class, and finally the Second Circuit rejected the class certification in July 2013, remanding the case back to the District Court for consideration of Google’s defense.
  • Brief facts of the Case: The argument that the applicants predominantly raised was that scanning a book means copying it, and copying without permission from a publisher’s or author’s work is a violation of copyright. They also argued that its members are owed compensation in lieu for their books being digitized and included in the digital database – even though blocking Google Book Search’s digitization wouldn’t bring any author additional revenue. Soon after the announcement by Google, publisher and author groups began protesting Google’s striving plan as a violation of their rights under the Copyright law. The Author’s Guild wanted to be asked for permission—and demanded a cut of any profit that Google earned through this project. On the other hand, Google argued that scanning the books was under “fair use.” While all books would be indexed and searchable on the Google Books site, users would only be able to access the full text of books that were out of control from the copyright and is available for use in public domain. If a book was still under copyright, and its rights-holder had not given permission, then a search would only return a small “snippet” of a specific text, not the whole book or even a page. In mid-2005, the Author’s Guild and the American Association of Publishers filed a suit to prevent Google from scanning any more books in furtherance of their project. Soon the Author’s Guild’s case was certified as a class-action lawsuit, ( meaning  anyone who had ever published a book in the past would be part of the plaintiff’s case of those it represented and would be bound by the result of the case.)
  • Held: The decision of The Court of Appeals for the Second Circuit has been well received by many observers worldwide even though the future of Google Books had provisionally appeared doubtful following Judge Chin’s rejection of the proposed settlement in early 2011. (In 2012 Google did reach a separate settlement with the Association of American Publishers, which had sued Google specifically over its use of books published by McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon & Schuster.) However, the appellate court’s negative response for Judge Chin’s granting of class status to the plaintiffs pointed to significant hints that the court case filed by the plaintiffs will be given against them—in that decision, the Second Circuit had hinted strongly that they found Google’s fair-use defense persuasive.

And in the end, Judge Chin gave the ruling in favor of the respondents. In his decision, he reviewed the various facts and the procedural history of the case. He  laid out a list of five benefits that he felt Google Books offered to the society which ;  in any welfare state is the ultimate agenda of the nation itself – The  upliftment and spread of knowledge  in the  society which turned the tables for Google. To quote, ‘’ Google Books does not supersede or supplant books because it is not a tool to be used for reading books. Instead, it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.” Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.’’[3].

He also observed, ‘’in my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits…’’[4]

  • Observation : The word ‘’Transformative’’ is an all encompassing word connoting  all inclusiveness  that was first defined by the Supreme Court of USA in 1994[5] where it was observed by the Judges of the Supreme Court ,  who stressed on the words – ‘First Use’ and ‘Transformative’ with the former being the primary feature of fair use. In this case, the issue was whether the material had been used to help create something new or merely copied verbatim into another work. Determining what is transformative and the degree of transformation which is acceptable is tough. [6]For example, the creation of a Harry Potter[7] encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), but this transformative quality was not enough to justify a fair use defense in light of the extensive verbatim use of text from the Harry Potter books.

Judge Chin in this case had extensively in detail; studied the ‘Transformative fair use’ factor which had been the defining aspect of the case wherein he used 4 pillars to understand the meaning of this word in the context of this case.

  1. Purpose and Character of the transformative fair use which should entail a wide social benefit for the good -of- all.
  2. Nature of the Copyrighted Works in question wherein Judge Chin observed that most of the books published were work of fiction in nature which was entitled to less protection than non-fiction work.
  3. Amount and Substantiality of Portion Used which was a very important factor for consideration wherein if the entire book was available, it would qualify as infringement which was not the case here.
  4. Effect of Use upon Potential Market or Value in which the Judge clearly stated that online market of a book can never replace the real books due to limitations imposed specific to the case.

On the foundation of the detailed study of these factors, the ruling was made in favor of Google in which Judge Chin clearly spoke about the better good of the society that benefited each society member from the project as well as the plaintiffs who would attain wider outreach and publicity. Thus in totality, this ruling has been regarded as a landmark judgment due to the sheer analysis used and logic defined in this case to determine the conclusion which in itself; is a lesson for judges all around the world as it helps them to understand the importance of balanced, clear, lucid and thoughtful logical thinking and teaches them to ensure that in the garb of intellectual rights, the public good must not be flouted and given greater importance over everything.

References:

[1] Google Basics

[2] Wikipedia

[3] Eff.org

[4] Quote in Article by scholarlykitchen..org

[5] Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)

[6] Fairuse Stanford

[7] (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008).)

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