The Authors Guild v. Google, Inc.

Filing 6

FORM C, on behalf of Appellant Jim Bouton, Joseph Goulden, Betty Miles and The Authors Guild, FILED. Service date 01/06/2014 by CM/ECF.[1126648] [13-4829]

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EXHIBIT 3 Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 1 of 30 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x THE AUTHORS GUILD, INC., and BETTY MILES, JOSEPH GOULDEN, and JIM BOUTON, on behalf of themselves and all others similarly situated, against - OPINION Plaintiffs, - USUC SDNY DOCUMENT ELECTRONICALLY FILED DOC#: DATEFILED: tLfr//i3 05 Civ. 8136 (DC) - GOOGLE INC., Defendant. x APPEARANCES: (See last page) CHIN, Circuit Judge Since 2004, when it announced agreements with several major research libraries to digitally copy books in their collections, defendant Google Inc. than twenty million books. participating libraries, (“Google”) has scanned more It has delivered digital copies to created an electronic database of books, and made text available for online searching through the use of usnippetsH Many of the books scanned by Google, under copyright, however, were and Google did not obtain permission from the copyright holders for these usages of their copyrighted works. As a consequence, in 2005, plaintiffs brought this class action charging Google with copyright infringement. Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 2 of 30 Before the Court are the parties for cross-motions summary judgment with respect to Gocgle s defense of fair use under § 1C7 of the Copyright Act, reasons set forth below, granted and plaintiffs denied Accordingly, 17 U S C § 1C7 For the Google s motion for summary judgment is motion for partial summary judgment is judgment will be entered in favor of Gcogle dismissing the case BACKGROUND A The Facts For purposes dispute See 9/23/13 Tr They are summarized as 1 o.t this motion, iC—li, 15, the facts are not 25—2E Dcc No in lCE follows The Parties Plaintiff Jim Bouton, York Yankees, is the former pitcher for the New the legal or beneficial owner of the U S copyright in the book Bail Four Plaintiff Betty Miles is the legal or beneficial owner of the U S Trouble with Thirteen copyright in the book The Plaintiff Joseph Gculden is the legal or beneficial owner of the U S ccpyright in the hook The 1 When pressed at oral argument to identify any factual issues that would preclude the award of summary judgment, plaintiffs counsel was unable to do so Id at 25-2€ —2— Case 1:05-cv-08136-DC Document 1088 Superlawyers Filed 11/14/13 Page 3 of 30 The Small and Powerful World of the Great Washington Law Firms Google Resp 9191 l-3 2 All three books have been scanned by Goog]e and are ava.i.i able for search on Google s website, 91 ‘i without plaintiffs Plaintiff The Authors Guild, permission Inc , Google Resp is the nation s largest organization of published authors and it advocates for and supports the copyright and contractual writers Google Resp interests of published 9191 ?- Google owns and operates the largest Internet search engine in the world people use Google s Google Resp 91 Each day, search engine free of charge; millions of commercial and other entities pay to display ads on Gooqle s websites and on other websites that contain Gocgle ads Google Resp 91 Ic: Google is a for-profit entity, and for the year ended December 31, 5 billion in advertising revenues 2C11, it reported over Google Resp 91 11 “Google Resp l refers to Google s Responses and Objections to plaintiffs Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment Dcc No ‘P1 Resp “ refers to plaintiffs ici: Response to Google s Local Rule 5 1 Statement Doc No IC71 I have relied on the parties responses to the statements of undisputed facts only to the extent that factual statements were not controverted Case 1 :05-cv-081 36-DC Document 1088 Filed 11/14/13 Page 4 of 30 The_Google Books_Prgjct 2. In 2CC4, The first, Gcogle announced two digital bocks programs initially called “Gcogle Print” and later renamed the “Partner Program, involved the ‘hosting” and display of material ‘ provided by book publishers or other rights holders Resp 1, {J Prcect, 1 The second became known as the “Library 14 and over time it involved the digital scanning of books in the collections of the New York Public Library, Congress, 5 Doc No Google and a number of university libraries iC35 Google Resp 91I 25, 2€, 2; the Library of Clancy Deci El Resp 1 ¶ I’J The Partner Program and the Library Project together comprise the Gocgle Books program Resp 15 novels, biographies, “Coogle Books”: All types of books are encompassed, children s books, textbcoks, instruction manuals, cookbooks, poetry books, and memoirs Dccl Doc : ¶ I No lCIl Gcogle including reference works, treatises, El dictionaries, Resp iI E; Jaskiewic2 Some S% of the hocks are non-fiction while approximately % are fiction Both in—print These estimates are based on studies of the contents of the libraries involved Def Mem at ? No Doc citing 1C32: Brian Lavoie and Lorcan Dempsey, Beyond l2 Characteristics of Potentially In—Copyright Print Books in Library Collections, 15D-Lib 11/12 2CCS , available at http //www dub org/dlib/ novemberC9/lavoie/Ulavoie html last visited Ncvember 12, —‘1— Casel:05-cv-08136-DC DocumentlO88 FIIedll!14113 Page5of3O and out-of-print books are included although the great maority 1 are out-of-print Jaskiewicz Dccl 1 L In the Partner Program works are displayed with 1 permission of the rights holders Google Resp I l€ The Partner Program is aimed at helping publishers sell books and helping bocks become discovered Google Reap I 18 Initially, Google shared revenues from ads with publishers or other rights holders in certain circumstances In 2Cll, however, Google stopped displaying ads in connection with all books Google Resp II 17, 21; Dougall Deci. 11 5-8 Doc No 1C7€ Partners provide Google with a printed copy of their books fcr scanning, or a digital copy if one already exists is: Partners decide how much of their books sample pages to the entire book I 2C -- are browsable -- Google Resp from a few Google Resp As of early 2C12, the Partner Program included approximately 2 5 million books, with the consent of some 45, CCC rights holders Google Resp I 24: As for the Library Project, Google has scanned more than twenty million books, in their entirety, using newlydeveloped scanning technology 2Cl3:: 26: Google Resp The numbers are not disputed —c t’ ‘II 28, 29 See S/23/2C13 Tr at a N o CD 0’ o o ,r ‘0 p. 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H’ H’ H. 3 Hi to CD H. 0 o ‘a Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 7 of 30 its making available to libraries for downloading ci digital copies ci in-copyright books scanned from their collections Google Resp 3. 91 55 Google Books In scanning books in-copyright books, for its Library Project, Google uses optical character recognition technclcgy to generate machine-readable text copy of each bock Jaskiewicz Led including Google Resp 91 3 91 E2; P1 compiling a digital Resp 91 I8 Google analyzes each scan and creates an overall index of all scanned books The index links each word or phrase appearing in each book with all of the locations in all of the books in which that wcrd or phrase is found The index allows a search for a particular word or phrase to return a result that includes the most relevant bcoks in which the word or phrase is found Clancy IDeci ¶1 E; P1 Resp Because the full texts of books are digitized the full text of all the books Clancy Dccl 91 7; Google Resp Users of Google s the search term appears a user can search in the Gocgle Books corpus 91 12 search engine may conduct searches using queries of••• their own design response to inquiries, 9191 22-2E P1 Resp J 1C In Google returns a list of books in which Clancy Dccl 91 E A user can click .t en a’ p. en CD a -i a a ‘ s CD a l.a li. en 0 ft 00 H 0 a a C CD 1< l a 0 -. 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H. a’ H. 0 a’ ao 0 Z 0 W ‘ “ 0 0 ft a’ CD ft o a a 0 en I’ a H CD 0 ft CD a H. 0’ ID 0 ft ft I-i C en CD H H en H. a H ft H. en ‘C en a 0 Case 1:05cv-O8136-DC Document 1088 returned, in response to a query j ‘blacklisted, ‘ Filed 11/14113 Page 9 of 30 one of the snippets on each page meaning it will not be shown; cut of ten entire pages in each book black-i Resp ¶91 45—5C P1 Resp ¶91 35, and at least one sted 000g].e An ‘ who tries attacker” 1 33—4C to obtain an entire book by using a physical copy of the bock to string together words appearing in successive passages would. be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and IC% of all pages P1 in short chunks, haiku Resp 91 42 ‘ In addition, such as dictionaries, are excluded from snippet view 4. works with text organi2ed cookbooks, P1 Resp and books of 91 42; The Benefits of the Library Project and Google Books The benefits of the Library Prcect are many 1 First Google Books provides a new and efficient way for readers and researchers to find books See, e g , Clancy Dccl Ex G It makes tens of millions of books searchable by words and phrases It provides a searchable index linking each word in any book to all books in which that word appears Clancy Dccl 91 Google Books has become an essential research tool, as ..LJbrarians identify and find research sources, process of interlibrary lending more efficient, it helps it makes the and it Case 1:05cv-08136-DC Document 1088 facilitates Filed 11/14/13 Page 10 finding and checking citations American Library Ass n et al at 4-7 Doc Br No ot3O cf Amid 1C4 Curiae Indeed, Google Books has become such an important tool for researchers and librarians that it has been integrated into the educational system -- it is taught as part of the information literacy curriculum to students at all levels Second tool, Id at 7 in addition to being an important reference Google Books greatly promotes a type of research referred to as ‘data mining” or “text mining “ Br and Law Scholars as Amici Curiae at 1 Dcc of Digital Humanities No 1G52 Google Books permits humanities scholars to analy2e massive amounts of data -- the literary record created by a collection cf tens of millicns of books Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time Using Google Books, Id for example, at 5-9; Ciancy Decl researchers can track the frequency of references to the United States as “the United States in the plural is’ Id a single entity versus references to the United States “the United States are’ changed over time ¶ 15 at 7 and how that usage has The ability to determine how often different words or phrases appear in books at different times ‘can provide insights about fields as diverse as -Ic- Case i:05-cv438136-DC Document 1088 lexicography, Filed 11/14/13 Page 11 of 30 the evolution of grammar, collective memory, adoption of technology, the pursuit of fame, historical epidemiology “ censorship, the and Jean-Baptiste Michel et al Quantitative Analysis of Culture Using Millions of Digitized Books, 3l Science 17€, Third, particular, 17€ 2Cl1 Clancy DecJ, Ex H: Google Books expands access to bocks In traditionally underserved populations will benefit as they gain knowledge cf and access to far more books Gcogle Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, Digiti2aticn facilitates the and Braille devices conversion of books to audio and tactile formats, access for individuals with disabilities Maurer, President of the National Michael McMahon, increasing Letter from Marc Federation for the Blind, Office of the Clerk Jan l, 2C1C Dcc Lo J Nc Gocgle Books facilitates the identification and access of materials for remote and underfunded libraries that need to make efficient decisions as own collections or to which resources to procure for their Lhrough inLerlibrary loans Curiae American Library As n at -E: -11- Br of Amid Case 1:05-cv-08136-DC Document 1088 Fourth, them new life Filed 11/14/13 Page 12 ot3O Gocgle Books helps to preserve books and give Older books, many of which are out—of-print books that are falling apart burled in library stacks, scanned and saved Supp 2d €EE, available, €‘7C See Authors Guild v S C N Y 2C11 at least for search, are being Google Inc , These books will 7C F now be and potential readers will be alerted to their existence Finally, books, by helping readers and researchers Google Books benefits authors and publishers identify When a user clicks on a search result and is directed to an ‘About the Book’ page, the page will offer links to sellers of the book and/or libraries Dccl listing the book as part of their collections The About the Book page for Ball provides links to Amazon corn, and IndieBcund See Def Four, Barnes&Nohle corn, Mem at 9 Clancy for example, Books—A—Million, A user could simply click on any of these links to be directed to a website where she could purchase the book Hence, Google Books will generate new audiences and create new sources of income As amici observe ‘Thanks to Google Books librarians can identify and ef ficiently sift through possible research sources, amateur historians have access to a wealth of previously obscure material, and everyday readers and researchers —1.2— Case 1:05-cv-08136-DC Document 1088 Filed 11J14113 Page 13 ot30 can find books that were once buried in research library archives B. Br ‘ of Amici Curiae American Library Ass n at 3 PLoceduralHisj Flaintiffs commenced this action on September 2C, alleging, inter alia, 2CC5, that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders From the outset, Google s principal defense was 1C7 of the Copyright Act, 17 U S C § 1C7 After extensive negotiations, the parties entered into a proposed settlement resolving plaintiffs wide basis On March 22, 2C1]., I fair use under § claims on a class- issued an opinion rejecting the proposed settlement cn the grounds that it was not fair, adequate, Supp and reasonable 2d EE S C N Y Thereafter, discussions, Authors Guild v Gcogle Inc 77C F 2C11 the parties engaged in further settlement but they were unable to reach agreement The parties proposed and I accepted a schedule that called for the filing of plaintiffs of discovery, class certification motion, the completion and then the filing of summary udgmenL motions See 9/1E/li Order Dcc No 92 amended class action complaint Plaintiffs the “Complaint”: —13— filed a fourth on October 14, Case 1:05-cv-08136-DC Document 1088 2C11 Dcc No 985 Filed 11114/13 Page 14 o130 While the date! in the schedule were subsequently extended, the sequence of events was retained, with the class certification motion to precede the summary judgment motions, and adding dates for Google s filing of a motion to dismiss the Authors Guild s claims Dcc No 99€ 3/26/12 Order Dcc 1 See e a No , 1/17/12 Order 1CC7 Plaintiffs filed their class certification motion and Google filed its motion to dismiss the Authors Guild s claims On May 31, 2C12, 1 issued an opinion denying Google s motion to dismiss and granting the individual plaintiffs certification S D N Y Authors Guild v Goople Inc , motion for class 282 F R D 2C12: On June 9, 2C12, I issued an order re-setting the briefing schedule for the summary judgment motions Order 384 Doc No 1C28 €/15/12 The parties thereafter filed the instant cross-motions for summary judgment Before the motions were fully submitted however, the Second Circuit issued an order on 1 September 17, 2C12, staying these proceedings pending an interlocutory appeal by Google from my decision granting class certification 5/17/12 Order Dcc No 1C€3 On July 1, 2C13, without deciding the merits of the appeal, the Second Circuit vacated my class certification —14— Case 1:05-cv-08136-DC Document 1088 decision, Filed 11/14/13 Page 15 cr30 concluding that “resciution of Google s fair use defense in the first instance will necessarily infcrm and perhaps moot cur analysis of many class certification Guild, Inc v Google Inc 721 F 3d 132, , 134 issues 2d Cir Authors 2C13 The Second Circuit remanded the case ‘for consideration of the fair use issues Id On remand, at 135 the parties completed the briefing of the summary judgment motions 2C13 I I heard cral argument on September 23, ncw rule on the motions U IS CUSS I ON For purposes of these motions, I assume that plaintiffs have established a prima facie case of copyright infringement against Gocgle under 13 U S C § iCE Rural Tel 34C, Serv Co , 49 U S See Feist Publ ns, 3E1 icci books, its servers and backup tapes v Gcogle has digitally reproduced milLions ct copyrighted books, individual plaintiffs Inc including the maintaining copies fcr itself cn See 17 U S C prohibiting unauthorized reproduction: § ICE i Google has made digital copies available for its Library Prcect partners to download See 17 U S C § iCE 3 prohibiting unauthorized distribution: Google has displayed snippets 17 U S C § ICE 5 from the books to the public prohibiting unauthorized display: —i — See Gooqie Case 1:05-cv-08136DC Document 1088 has done all of this, Library Prcect, owners with respect to in-copyright books in the without license or permission from the copyright The sole issue now before the Court is whether Googie s use of the copyrighted works is laws For the reasons set A. Filed 11/14/13 Page 16 ot30 Ap ..P.J ‘fair user forth below, under the copyright I conclude that it is w Fair use is a defense to a claim of copyright infringement The doctrine permits the fair use of copyrighted works t fulfill copyright s very purpose, to Progress of Science and useful Arts Music I, Inc § Cir , ci SiC U S , 5 2C]3: 5E9, 575 I94 accord Cariou v ‘ t. o promote the cpbell v Acuff-Rose quoting U S Prince, 714 Const Art 7C% F 3d E4, , 2d Copyright law seeks to achieve that purpose by providing sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utili2e protected works to advance the progress of the arts and sciences 2CC3: Blanch v Pierre N llC5, Leval, 1IC7—C See Eldred v Koons, 1JE7 Ashcroft, F 3d 24, 2%C Toward a Fair Use Standard, ic: 537 U S 2d Cir lS, 2CCE 1C3 Harv As the Supreme CourL has held, infancy of copyright protection, L ‘ 212 Hcn ; Rev f rom the some opportunity for fair use of copyrighted materials has been thought necessary to -1 E fulfill Case 1:05-cv-08136-DC Document 1088 copyright s very purpose ‘ Harper & Row Publishers, Inc SEC 19E5: Campbell, v Filed 11/14/13 Page 17 of 30 SiC U S Nation Enters at 575; see also ‘171 U S , 539, recognizing ‘the latitude for scholarship and comment traditionally afforded by fair use’ The Copyright Act 1 fair use doctrine is codified in § 1C7 of the which provides in relevant part as follows The fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching including multiple copic s for classroom use; scholarship, or research, is not an infringement of copyright In determining whether the use made cf a work in any particular case is a fair use the factors to be considered shall include -- 1 the purpose and character of the used including whether such use is of a commercial nature or is for nonprcfit educational purposes; 2; the nature of the copyrighted work; 3 the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4 the effect of the use upon the potential market for or value of the copyrighted work 17 U S C § 1C7 The determination of fair use is context-sensitive inquiry,” Blanch v -17- “an open-ended and Koons, ‘1E7 F 3d at 251, and Case 1:05-cv-08136-DC Document 1088 thus the fair use doctrine calls Campbell, 553 510 U S at 577; Filed 11/14/13 Page 18 of 30 for ‘case-by-case analysis,” see also Harper & Row, 471 U S The four factors enumerated in the statute are non-exclusive and provide only “general guidance”, explored and weighed together, copyright “ at EEC-El Campbell, As U S “in light of the purposes of 510 U S at 57-7S; Harper & Row, 471 U S the prcpcnent carries the burden of proof as to all issues in dispute , they are to be fair use is an affirmative defense to a claim of copyright infringement, Inc at EC F 3d 913, 91 Am 2d Cir Geophysical Union v 1994 ; Texaco see also Campbell, 510 at 590 A key consideration is whether, into the first factor, “transformative, “supersedes” “ as part of the inquiry the use of the copyrighted work is that is, whether the new work merely or “supplants” the original creation, or whether it instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message) it asks, in other words, whether and to what extent the new work is “transformative Campbell, SiC U S Standard, iC3 Nary v at S79 L quoting Leval, Rev Boning Kindersley Ltd at l211 , 445 ; accord Bill Graham Archives F 3d 505, -15- ‘loward a Fair Use 505 2d Cir 2CC5 Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 19 of 30 ‘Most important to the court s analysis of the first factor is transformative F 3d at S23 necessary” nature of the work Geophysical Union, Although transformative use is not ‘absolutely to a finding of fair use, promote science and the arts, “the goal of copyright, to is generally furthered by the creation of transformative works B. Am “ Campbell, ‘ 51C U at ?S Application I discuss each of the four factors separately 1 and I then weigh them together 1. fppse and Character of Use The first factor is use, “the purpose and character of the including whether such use is of a commercial nature or is for ncriprofit educational purposes “ l U S C § lC 1 Google s use of the copyrighted works is highly transformative Google Books digiti2es books and Lransforms expressive text into a comprehensive word index that helps readers, scholars, 1 researchers and others find backs Gcogle Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books The use of book text to facilitate search through the display of snippets is transformative Inc , 5C F 3d illE, lifE See Perfect 1C, th Cir —i — 2CC7 inc v Amazon corn, holding that use of EC Case 1 :05-cv-081 36-DC works ‘thumbnail images, -- photographs v Document 1088 -- ‘ including copyrighted to facilitate search was Arriba Soft. Corp , 33€ also Bill Graham Archives, E 3d 8H 44€ display of images of posters readers “transformative” 9th Cir F 3d at €C9-ll in 4€C-page Grateful Dead was transformative, small size Filed 11/14/13 Page 20 of 30 2cC3: sarne ; see holding that cultural history of the explaining that of the images of the posters Kelly ; “ while the is sufficient tc permit to recognize the historial significance of the posters, it is inadequate to offer more than a glimpse of their expressive value”: The display of snippets of text for search is similar to the display of thumbnail images cf photographs for search or small images of concert posters the snippets help users may be of interest purpose —- for reference to past events, as locate books and determine whether they Google Bocks thus uses wcrds for a different it uses snippets of text to act as pointers directing users to a broad selection of books Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, new areas, including data mining and text mining in thereby opening up new fields of research Words in books are being used in a way they have not been used before Google Books has created something new in the use of book -2C- Case 1:05-cv-08136-DC Document 1088 text Filed 11/14/13 Page 21 of 30 the frequency of words and trends -- in their usage provide substantive information Google Books does not supersede or supplant books because it is not a tool to be used to read books Instead, it “adds value to the original’ and allows information, new insights and understandings new aesthetics, Level, Toward a Fair Use Standard, Hence, the use is 1C3 Harv L of course, at 1111 as plaintiffs argue, is a for-profit entity and Google Books is against a finding of fair use SiC U S Harper & Row, ‘ at 5E5 that Google largely a commercial The fact that a use is commercial accord Campbell, Rev transformative It is true, enterprise for ‘the creation of new tends to weigh ‘171 U S On the other hand, at 5€2; fair use has been found even where a defendant benefitted oamrnercially from the unlicensed use of copyrighted works 4E7 F 3d at 253; Bill Graham Archives, See, e g 445 F 3d at 512 , Blanch, See also Castle Rock Entm tInc v 132, observing that Second Circuit does 142 2d Cir l995 Carol Pubi q Grp , Inc , 15C F 3d “not give much weight to the fact that the secondary use was for commercial gain” Here, 000gle does not sell made of books for Google Books; that it displays; Lhe scans it has it does not sell the snippets and it does not run ads on the About the Book -21- Case 1:05-cv-08136-DC Document 1088 pages that contain snippets It does not engage in the direct commerciali2aticn of copyrighted works Gocg.le does, of course, Filed 11/14/13 Page 22 of 30 See 17 U S C § 1C i benefit commercially in the sense that users are drawn to the Google websites by the ability to search Google Books While this is a consideration to be acknowledged in weighing all the factors, motivation is profit, several even assuming Gocgle s principal the fact is that Gcogle Bcoks serves important educaticnal purposes Accordingly, I conclude that the first factor strongly favors a finding of fair use 2. Nature oLgQyiitorks The second factor is work “ ] U S C § lC 2: types of published books, out—of-print “the nature of the copyrighted Here, the works are books fiction and non-fiction, -— all in—print and While works of fiction are entitled to greater copyright protection, Stewart v Abend, 45 U S 2C7, 237 199C; here the vast majority of the books in Gcogle Books are non-fiction Further, the books at issue are published and The parties agree that the second factor plays little role in the ultimate fair use determination P1 Mem at 3E n 18 Doc No Mem at 25: ; Def See On Davis v Gap, Inc 24€ F 3d 152, 175 2d Cir 2CC1 “The second statutory factor, the nature of the copyrighted work, is rarely found to be determinative internal citation omitted icsc: “ —22— Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 23 of 30 available to the public These considerations fair use , See Arica Inst 2d Cir i92 Inc v Palmer, favcr a finding of 7C F 2d 1C€7, 1C7 ‘Whether or not a work is published is critical to its nature under factor two because the scope of fair use is narrower with respect to unpublished works Publ ns Cir Intern i9C 3. ApS v Carol Publ’q Grp quoting New Era C4 , F 2d 152, 157 2d internal quotation marks cminitted Amount and Substantiality of Portion Used The third factor is ‘the amount and substantiality of the pcrtion used in relation to the copyrighted work as a whole.” 17 U S C § 1C7 entire books hand, -- Google scans the full text of books 3: and it copies verbatim expression the -- On the other courts have held that copying the entirety of a work may still be fair use See, City Studios, Inc Archives, F 3d at 44E , e g ‘14 U S El3 Sony Corp 417, 4—5C of Am ]‘i v ; Universal Bill Graham ‘copying the entirety of a work is sometimes necessary to make a fair use of the image one of the keys to Google Books is search of books, Here, its offering of full-text full—work reproduction is critical to the functioning of Google Books Significantly, Google limits amount of text it displays in response tc a search —23— the as Case 1:05-cv-08136-DC Document 1088 On balance 1 FIled 11/14113 Page 24 0130 I conclude that the third factor weighs slightly against a finding of fair use 4. Effect of Use Unon Potential Market or Value The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work u s c s 107 4: 17 Here, plaintiffs argue that Google Books will negatively impact the market for books and that Gocgle s scans will serve as a “market replacement” for books 41: El Mem at It also argues that users could put in multiple searches, varying slightly the search terms, to access an entire book 9/23/13 Tr at e: Neither suggestion makes sense Gocgle does not sell its scans, and the scans do not replace the books While partner libraries have the ability to download a scan of a book from their collections, they owned the books already the original book to Google to scan -e they provided Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion —24— Case 1:05-cv-08136-DC Document 1088 To the contrary Filed 11/14/13 Page 25 of 30 a reasonable factfinder cculd only find that Google Books enhances of copyright holders An important factor in the success of an the sales of books to the benefit individual title is whether it is discovered readers learn of its existence Harris Dccl whether potential -- 9! Gcogle Books provides a way for authors 1 noticed much like traditional ¶9! l4-l Indeed, Doc No works to become in-store bock displays Id at both librarians and their patrons use Gocgle Books to identify books to purchase American Library Ass n at Br of Ainici Curiae Many authors have noted that cnline browsing in general and Google Books in particular helps readers Further, find their work, thus increasing their audiences Google provides convenient links to booksellers to make it easy for a reader to order a book on-line shopping, In this day and age of there can be no doubt but that Google Books improves books sales Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use 5. Overall Assessment Finally, the various non-exclusive statutory factors are to be weighed together, considerations, along with any other relevant in light of the purposes of the copyriqht laws Case 1:05-cv-08136-DC Document 1088 In my view, benefits Filed 11/14/13 Page 26 ot3O Google Books provides significant public It advances the progress of the arts and sciences, while maintaining respectful ccnsideraticn for the rights of authors arid other creative individuals, and without adversely impacting the rights of copyright holders It has become an invaluable research tool that permits students, librarians, books and others teachers, to more efficiently identify and lccate it has given scholars the ability, for the first time, conduct fulltext searches of tens ci millions of books preserves books, It in particular out-cf-print and old books that have been forgotten in the bowels of libraries, new life to and it gives them It facilitates access to books for print-disabled arid remote cr underserved populations It generates new audiences and creates new sources of income for authors and publishers Indeed, all society benefits Similarly, respect to plaintiffs Google is entitled to summary judgment with claims based on the copies ci scanned books made available to libraries Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Gocgle s actions constitute fair use here as well Google provides the libraries with the technological means to make digital copies of books that they already own -2- The purpose ci Case 1:05-cv-08136-DC Document 1088 Fi’ed 11/14/13 Page 27 of 30 the library copies is to advance the libraries lawful uses of the digiti2ed books consistent with the copyright law libraries then use these digital copies The in transformative ways They create their own full-text searchable indices of bcoks maintain copies for purposes of preservation, and make copies available to expanding access print-disabled individuals, for them in unprecedented ways Gocgle s actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use To the extent plaintiffs are asserting a theory of secondary liability against Google, libraries Indeed, actions are protected by the fair use dcctrine in the HathiTrust case, libraries conduct was HathiTrust, cannot the theory fails because the SC2 F Supp Judge Baer held that the fair use 2d 445, See Authors Guild, 4EC-El, ‘1E4 v 2C12 ‘1 imagine a definition of fair use that would not encompass the transformative uses made by Defendants Proect S D N Y Inc and would require that I Mass Digitizaticn terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same Lime ef fectuates Americans with Disabilities Act ‘. -27- the ideals espoused by the The fair use analysis set Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 28 of 30 forth above with respect to Google Books applies here as well to the libraries use of their scans, and if there is no liability for copyright infringement on the libraries part, there can be no liability on Google’s part. CON CLUS I ON For the reasons set forth above, plaintiffs’ motion for partial summary judgment is denied and Google’s motion for summary judgment is granted. Judgment will be entered in favor of Google dismissing the Complaint. proposed judgment, on notice, Google shall submit a within five business days hereof. SO ORDERED. Dated: November 14, 2013 New York, New York DENNY United States Circuit Judge Sitting By Designation -28- Case 1:05-cw08136-DC Document 1088 Filed 11/14/13 Page 29 of 30 APPEARANCES For Plaintiffs BONI ZACK LLC Michael J By Boni, Esq, Joshua D Snyder, Esq John E Sindoni Esq 15 St Asaphs Road Bala Cynwyd, PA I9CCI FRANKFURT KURNIT KLEIN & SELZ P C By Edward H Rosenthal, Esq Jeremy S Goldman, Esq Madison Avenue New York, NY 1CC22 MILBERG LLP By Sanford P Dumain, Esq I Pennsylvania Plaza New Ycrk, NY iCli For Defendant Gcoqle Inc DURIE TANGRI LLF Daralyn J By Dune, Esq Joseph C Gratz Esq David McGowan, Esq Genevieve P Roslcff, Esq 2l Leidesdorff Street San Francisco, CA 4111 Case 1:05-cv-08136-DC Document 1088 Filed 11114/13 Page 30 0130 For Amicus Curiae Digital Humanities and Law Scholars SAMUELSON LAW, TECHNOLOGY & PUBLIC POLICY CLINIC By Jennifer M Urban, Esq Babak Siavcshy, Esq Jason Schult2, Esq University of California, Berkeley, Schcol of Law 3E Simon Hall Berkeley, CA 9fl2C and Matthew Sag, Esq Loyola University of Chicagc School of Law 25 East Pearson Street Chicago, IL ECEII - - For Amicus Curiae American Library Asscciation, Association of College and Research Libraries, Association of Research Libraries, and E]ectron.ic Frontier Foundation JONATHAN BAND PLLC By Jonathan Band, Esq 2]. Dupont Circle, NW Washington, DC 2CC3( —3C—

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