Court Applies Fair Use Defense to Dismiss Copyright Infringement Claims Over Google Books

In a November 14, 2013 decision, Judge Denny Chin (continuing a case in which he presided before joining the Second Circuit) granted summary judgment in favor of Google, Inc in the long-running case by The Authors Guild, Inc. based on the fair use defense to copyright infringement.  As part of its Google Books program, Google "has scanned more than twenty million books," "has delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of 'snippets.'"  Since many of the scanned books are still under copyright, The Authors Guild, and three named plaintiffs brought a class action copyright infringement action.  The parties cross-moved for summary judgment on Google's fair use defense.

At the outset, Judge Chin assumed that the plaintiffs had made out a prima facie case of infringement, and that the sole issue for decision "is whether Google's use of the copyrighted works is 'fair use' under the copyright laws."  The defense, which the defendant has the burden of proving, is codified at 17 U.S.C. § 107, and requires the consideration of four non-exclusive factors:  "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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."  The Court considered each of these factors in turn.

Court Denies Reconsideration of Motion to Compel Settlement-Related Documents

In an October 11, 2013 ruling, Judge Denny Chin, sitting by designation, denied reconsideration of plaintiff the American Society of Media Photographers, Inc.'s motion to compel production of documents listed on defendant Google, Inc.'s privilege log.  Judge Chin rejected the argument that their inclusion on the log demonstrated their relevance, writing that "the inclusion of documents merely means that they are responsive to the request for the production of documents, not that they are relevant or are reasonably calculated to lead to admissible evidence."  The Court also noted that the plaintiff also failed to explain how documents relating to Google's settlement talks with another party are relevant, ruling that  if "defendant expressed its view as to its fair use defense in settlement discussions, those statements are not relevant or, even assuming some relevance, they are not admissible."