Three book authors and their advocacy organization, the Authors Guild [advocacy website], challenged Google’s massive book-copying and search project before the US Supreme Court [official website]. The petition [PDF] alleges that Google, in cooperation with various university libraries, took essentially all the books off shelves and scanned them rather than buy or license them. According to the petition, Google copied more than 20 million books, at least four million of which were still protected by copyright, but Google never got permission for their reproduction. In exchange for this unfettered access to books, it is further alleged Google provided the libraries with unlicensed digital copies of the books it had copied. Ultimately, excerpts from these books ended up in the Google Books search engine database, which became available to any and all Internet users. The petition states that Supreme Court precedent limits the availability of a “fair use” defense based on creating a “transformative version to adaptations that actually create new expression.” However, the authors, Betty Miles, Jim Bouton and Joseph Goulden, say that Google’s project adds nothing new to the scanned excerpts, and “therefore does nothing to reshape their character in a ‘transformative’ use.” This appeal follows a ruling by the US Court of Appeals for the Second Circuit [official website] that Google’s efforts to digitize the books for an online library is permissible fair use [JURIST report].

Subject to a four-part test [Stanford backgrounder], fair use continues to be a contentious issue in the digital age. In September the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that copyright owners must consider “fair use” before demanding the removal of online materials. That case came about after Stephanie Lenz was ordered to remove [JURIST report] a YouTube video of her infant son dancing to Prince’s hit “Lets Go Crazy.” In a case similar to the one involving Google, the European Court of Justice ruled [JURIST report] in September that EU member states may authorize public libraries to digitize works contained in their collections without the consent of the rights holders. In September 2012, the Second Circuit suspended litigation [JURIST report] between the Authors Guild and Google pending an appeal of a May ruling allowing a class action lawsuit [JURIST report] over Google’s book-scanning initiative. Both sides had tried to resolve the dispute without litigation, but their settlement agreement had been rejected [JURIST report] by then Circuit Judge Denny Chin in March 2011.