Google Seeks Protection to Copy Books Without Permission - Bloomberg

Google Inc. (GOOG), owner of the world’s largest search engine, tried to persuade a judge that digitally copying millions of books for online searches without authors’ permission is protected by copyright law. The company argued today in federal court in Manhattan that the fair-use provision of the Copyright Act shields it from liability for infringement. Authors and a trade group oppose the project, claiming Google has taken away their rights for its own gain without compensating them.  U.S. Circuit Judge Denny Chin quizzed both sides about the public’s interest in the project, at a hearing where Google asked him to end an eight-year-old lawsuit by the Authors Guild and individual writers. If Chin finds Google liable for infringement, it could cost the company more than $3 billion in damages and end a project on which it has spent as much as $40 million annually. He didn’t say when he’ll rule.  Several times during the hearing, Chin pressed a lawyer for the authors to provide him with any disputed facts that would prevent him from ruling in Google’s favor. 'Google has engaged in a massive campaign of bulk copying of books, which could adversely affect actual and potential markets for copyrighted books,' authors said in a court brief.  Google argued that providing snippets of text from more than 20 million books in online searches constitutes fair use under copyright law because the action benefits the public and authors and doesn’t cause them financial or other harm.  Authors are helped because consumers discover and buy their books, Google said. Copyrighted content used for criticism, comment, news reporting, teaching and research is generally protected from liability under fair use.  'Plaintiffs have adduced no evidence that Google Books has displaced the sale of even a single book,' Google said in its brief. 'A survey of authors has shown that the majority of authors approve of their inclusion in Google Books.'  David Leichtman, a lawyer with Robins, Kaplan, Miller & Ciresi LLP, doesn’t think Chin will grant Google the fair-use defense. Leichtman, who wrote a brief on behalf of a different authors’ group, doesn’t represent any parties in the case.  'It’s a case where the fair-use doctrine is being misused in a sense because it’s really for purely commercial reasons Google is doing this,' Leichtman said in an interview.  Google makes much of its revenue by placing advertisements on the Web pages that list users’ search results.  A key component of the fair-use defense is whether the use is considered 'transformative' or not. Google will rely on federal appeals court opinions that providing content for online searches transforms a work by giving it a new purpose and thus makes its use fair. The authors have argued that no new work or meaning is created.  'I’m not optimistic that Google is going to win on summary judgment,' Peter Vogel, a lawyer at Gardere Wynne Sewell LLP who teaches e-commerce law at Southern Methodist University, said in an interview. 'This is going to go on for a while in order to figure out what the fair use is.'  The outcome may be different, though, if Chin relies on a case in his own federal jurisdiction.  David Shlansky, managing partner of Boston-based Shlansky Law Group LLP, said Google may prevail on the fair-use argument because of the HathiTrust precedent in U.S. District Court in New York ..."