When copying 20,000,000 books without permission is not copyright infringement
Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly over the foul pole boundary of the short porch in right.
In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).
The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.
Stating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”
The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”