A United States Circuit Court Judge, Denny Chin, has written a very important opinion that just might (if it's upheld when the inevitable appeal comes) move the law of copyright into the digital age.
My IPR students (past and present) should read Judge Chin's opinion.
Judge Chin's opinion is the latest twist in a now very long-running case filed eight years ago by authors who accused Google of digitally copying millions of books for an online library without permission.
As Reuters reported on Nov. 14th: "U.S. Circuit Judge Denny Chin in Manhattan accepted Google's argument that its scanning of more than 20 million books, and making "snippets" of text available online, constituted "fair use" under U.S. copyright law."
Here's a key excerpt from the decision (My IPR students will recognize the way Judge Chin weaves the intent of copyright - quoting from the Constitution about "the progress of the arts and sciences" - into his opinion, while also acknowledging the 4 part balancing test of the 1976 statute to find in favor of Google Books):
"In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits."
Judge Chin's opinion may not surprise many of my current and former students. Based on our in-class copyright discussions, many of you probably saw this one coming. On the other hand, I bet some lawyers and executives at big media companies were surprised at this news. In fact, I know a few are... Here's what attorney David Leichtman, told Newsday back in September: “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..."
If you're a book publisher, academic librarian, film distributor, internet provider, or just someone who cares about copyright, fair use and how ideas spread - you'll be hearing about Google's victory and Judge Chin's decision.
Judge Chin's opinion in the Author's Guild v. Google case - if his decision is not overruled - will almost certainly speed up the shift of financial incentives for authorship away from old revenue models.
What new models will arise post-Chin's opinion are not entirely clear just yet - but optimists (like myself) have been looking for a decision that would more clearly distinguish between transformative copying of material found online and bootlegging of DVDs.
For too long now, we've been treating unpermissioned copying of snippets of old books for educational purposes in the same way that we have treated enterprise-level bootlegging of DVDs or pirated software.
Using the power of the state to criminalize acts of scholars (and fans) who have learned how to use everyday copying and sharing tools - not because they want to deprive anyone of income - but because they want to share their knowledge and their love of their subject - has always struck me as a threat to a vital culture and a tad irrational.
(And yes, I included "fans" parenthetically above because I'm so radical that, even though Judge Chin's opinion only covers books - I'm hoping that even fans who mash-up Miley Cyrus and post it to YouTube, can one day soon find a similar safe harbor in fair use.)
Note: I'm not anti-copyright.
I tell my students, there are always two-sides to every copyright argument - but when it comes to laws that criminalize copying of snippets of 80 year old out-of-print books by scholars and researchers... Well... I know what side I'm on...