The author of the appeals court decision that legalized Google Books last April told publishers at the 2017 London Book Fair that despite the controversial, decade-long litigation it generated, it was, in the end, not a difficult legal decision.
In a packed room for the LBF’s 2017 Charles Clark Memorial Lecture, Judge Pierre Leval, America’s foremost copyright jurist and a judge on the U.S. Court of Appeals Second Circuit, told attendees that Google’s program to scan tens of millions of library books to create an online index “conferred gigantic benefits to authors and the public equally,” and did not “offer a substitute or interfere with authors’ exclusive rights” to control distribution.
“It was,” Leval concluded, “not a, quote, close case.”
Leval delivered his remarks in what was billed as a debate with intellectual property lawyer and former General Counsel for the U.S. Copyright Office, Jon Baumgarten. But at the outset, both Leval and Baumgarten—long time acquaintances—downplayed the debate aspect. Rather, at a time when proposed exceptions to copyright law have many publishers in the U.K. and Europe on edge, Leval spoke mainly as an ambassador for the American doctrine of fair use.
“Without question, this is a scary time for content holders,” Leval conceded at the start of his talk. But, he stressed, new technologies can also “vastly improve the utility of copyrighted matter without significant, or any, impairment” of the rights protected by the Copyright Act.
The key to American fair use, he said, was the flexibility the law gives judges. While he acknowledged there is something to be said for “predictability and bright line rules,” he insisted that hard and fast standards do not best serve the purpose of copyright.
“The fair use question is not amenable to clear bright line rules,” Leval said. “The shape of tomorrow's dispute in this area is not predictable today. The factors that affect an intelligent resolution are far too numerous, and small, and subtle variations of fact have very big consequences for good decisions.”
Turning back to the Google case, Leval spoke of the misinformation that circulated about the case in the press (that Google was distributing entire copies of digital works without permission, for example) and briefly ran down the many benefits of the program in the view of the court. “It became clear that the information provided to the world by Google Books in no way impaired the value of the copyrights, or offered any sort of substitute for the books,” Leval said.
In his portion of the talk, Baumgarten reiterated the publishing community’s main complaints with the decision, and about fair use in the digital age more broadly. Most prominently, that the decision overly expanded the right to freely copy others’ works, which, if widely practiced in the digital age will harm rightsholders. He also bemoaned what he saw as the courts’ expansion of what “transformative” means.
But Leval stressed that Google’s aim—to provide information about books—meshed with the aim of copyright, even if it required making unauthorized copies to do so.
“If, instead of making digital copies, Google had employed six million elves to scour the text of the books and furnish information [to users] there would've been no question of infringement,” Leval said. “The mere fact the Google supplies that information through a digital copy, as opposed to employing six million elves, does not convert the lawful provision of information into infringement.”
Notably, the measured, cordial—at times even warm discourse between Leval and Baumgarten stood in stark contrast to the often overheated copyright discussions of past years, especially as the E.U., and other territories such as Canada and Australia have begun to consider new exceptions to copyright law. In closing, Leval urged publishers to keep open minds.
“I say to you, essentially an audience of, I assume, content owners and rights holders, that fair use, at least as it's understood in the United States is not your enemy,” he said. “It is solicitous of your rights.”
