Google’s Book Digitizing Activities Ruled Fair Use

Authors of published books under copyright sued Google for copyright infringement, alleging that Google’s book copying activities for Google’s Library Project and Google Books project infringe the authors’ copyrights.  In Authors Guild, Inc. v. HathiTrust, authors alleged that the HathiTrust violated the authors’ copyrights by allowing Google to electronically scan HathiTrust members’ book collections and create a repository of the scanned works.  The Second Circuit ruled in that HathiTrust’s activities were fair uses.  It’s no surprise, then, that the Second Circuit also ruled in this case, Authors Guild v. Google, Inc., that Google’s activities were fair uses.  The Second Circuit’s ruling in the Google case is closely related, but not identical, to its ruling in HathiTrust.  My post, HathiTrust Book Scanning Ruled Fair Use, discusses the Second Circuit’s ruling in HathiTrust.

The opinion in the Authors Guild v. Google case was written by Second Circuit Judge Pierre N. Leval.  Judge Leval created the transformative use test as a way of determining whether a later work made fair use of a preceding work.  He described the transformative use test in his law review article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).  The U.S. Supreme Court frequently referred to Judge Leval’s law review article in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  In Campbell, the Supreme Court adopted the transformative use test in ruling that 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use.

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Nonprofit Educational Use is Fair Use and Trumps Lack of Transformation

Cambridge University Press, Oxford University Press and Sage Publications sued Georgia State University (GSU) for copyright infringement.  GSU made scanned materials from plaintiff’s books available to students over the Internet without obtaining permission or paying plaintiffs.  The district court ruled that the fair use defense protected GSU in forty-three instances and that GSU infringed in five instances.  The Eleventh Circuit ruled that the district court erred in its fair use analysis and reversed and remanded the case.

Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students—facilitated by the development of systems for digital delivery over the Internet—should be excused under the doctrine of fair use.

(Opinion pdf page 5).

The central issue in this case is under what circumstances GSU must pay permissions fees to post a digital copy of an excerpt of Plaintiffs’ works to ERes or uLearn (GSU’s course content websites).

(Opinion pdf page 11).

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TVEyes’ Use of Fox News Content Transformative and Fair Use

Some people find what television commentators say about the news as relevant as the news itself.  TVEyes is for them.  TVEyes records the broadcast content of over 1,400 television and radio stations.  TVEyes’ subscribers can use the TVEyes database to monitor and track search terms and get transcripts and video clips of portions of the TV shows that came up as search hits.  Video clips are limited to ten minutes and most are less than two minutes.  Content is available on the TVEyes website for only 32 days.  TVEyes is not available to the general public.  Subscribers are contractually prohibited from reproducing, publishing, rebroadcasting, publicly showing or publicly displaying the video clips.  Subscribers can also watch live streaming of everything TVEyes is recording.  TVEyes subscribers include the White House, the U.S. Army, members of Congress, news agencies, businesses and law enforcement agencies. 

Fox News Network filed suit against TVEyes for copyright infringement.  Fox News sought to enjoin TVEyes from copying and distributing clips of Fox News programs.  Fox News is concerned that TVEyes will divert viewers, and thus revenue streams, away from Fox News’ cable programs and websites.  TVEyes claimed fair use.  Fox and TVEyes both moved for summary judgment.  The district court ruled that TVEyes’ use of Fox News’ content is fair use, except that the district court ruled that more evidence was necessary on the TVEyes features that allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs.  The district court denied Fox News’ request for an injunction.

9/12/2014 9:40 am PDT update from a FOX News spokesperson:  

“The Court only ruled that a specific portion of TVEyes’ service — its keyword search function — was fair use. The Court expressly said that it required more information to decide whether TVEyes’ other features — including allowing video clips to be archived, downloaded, emailed, and shared via social media — were fair use. The Court has called for another hearing on October 3, 2014.”

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HathiTrust Book Scanning Ruled Fair Use

The Second Circuit Court of Appeals upheld the district court’s decision that two of the three uses of copyrighted works by the HathiTrust Digital Library (HDL) are fair uses.  The three uses are full text search, access to the print-disabled and preservation.  Categorizing these uses as “fair uses” runs contrary to true fair use, according to Professor Jane C. Ginsburg.  My post, True Fair Use Is About Authorship and Nothing Else, further describes Professor Ginsburg’s position.  I agree with Professor Ginsburg that the uses upheld by the Second Circuit have nothing to do with authorship.  However, these uses benefit society and would not be allowed to continue if they weren’t found to be fair uses.  The greater question becomes how far should we extend copyright protection to benefit society when the legal analysis undertaken by the court doesn’t make sense from a legal theory point of view.

The HDL contains over ten million works contributed by colleges, universities and other nonprofit institutions.  The HathiTrust began in 2008, when thirteen universities agreed to allow Google to electronically scan their book collections and create a repository for the digital copies of the scanned works.  Authors and authors’ associations sued HathiTrust for copyright infringement.  The Second Circuit ruled that because third parties cannot file suit on behalf of authors under the Copyright Act, author associations based in the U.S. do not have standing to bring this suit.  Only the copyright owner can enforce the copyright.  Foreign author associations do have standing, though, and the Second Circuit proceeded with its analysis on that basis.  The Second Circuit did not discuss the standing of the individual author plaintiffs.

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