Google Books Program Upheld as Fair Use

by Paul Alan Levy

The major ruling of the day:  Circuit Judge Denny Chin, sitting as a trial judge because he retained the case after being promoted to the Second Circuit, has granted summary judgment  rejecting the Authors Guild’s copyright claims against Google’s program of scanning books into digital form and both offering the digital copies to libraries as fodder for their own use as well as enabling searches of the books’ text and displaying snippets of the books that are related to the search terms.  Judge Chin took as given that the program involved copyright infringement, but held that the defense of fair use precluded the claims.

The opinions bristles with important rulings about the fair use factors and repeatedly cites amicus briefs from the American Library Association and others and from Digital Humanities and Law Scholars,   whose authors are justifiably proud about their contributions to the victory.  

There will be much discussion of the fair use rulings in the days and years to come; the plaintiffs have already announced that they will appeal.  But the decision highlights an important point about the judicial process.  Judge Chin’s decision on the merits is much more beneficial to the public than the original proposed settlement of the Google Books litigation would have been. Unlike that settlement, which could have ensconced Google as the only search engine entitled to digitize books without the consent of their authors, this ruling provides a road map that allows any other entity to follow in Google’s path.  Judge Chin’s ruling reminds us of a point effectively made by Owen Fiss thirty years ago in his seminal article Against Settlement:    that the main job of a federal judge is not to supervise settlements, and especially not to bully parties into settling their cases. The judge’s job is to decide cases, so that every member of the public, not only the parties, can benefit from the public resources that go into the judicial system.