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August 20, 2012
Google Book Scanning Case Update
The Court in the Google book scanning case formally accepted a joint amicus brief filed earlier in the month by the American Library Association and the Electronic Frontier Foundation. I wrote about the content of that brief on August 2. Since that time the Authors Guild argued against the Court accepting those briefs. The Guild’s points were that the briefs were really friends of Google than of the Court, citing precedent that rejected such filings. The response was that there is no mechanical application of a rule that limits amicus briefs at the District Court level, noting the discretion of the Court in accepting such briefs. The Guild, in any event, has filed similar briefs in cases where it had self-interest.
Various legal and humanities scholars submitted their own amicus brief shortly after the same time the ALA and EFF filed their brief. This was formally accepted by the Court in the same order. That brief argues that “text mining is a non-expressive use that presents no legally cognizable conflict with the statutory rights or interests of the copyright holders.”
The technology implemented by Google, and potentially others, allows for unprecedented analytical opportunities through digitized content. The use here is non-expressive and the copying (even at the level of 20 million or so books) is merely incidental to generate the metadata used by scholars. This use is socially beneficial and that is one of the considerations in a fair use analysis. The brief contains a series of examples of how scholars use Google’s technology to advance their understanding of their fields.
The Court has laid out a briefing schedule as follows: The amici will not be allowed to file responses to subsequent filings; parties will file their opposition to the cross-motions for summary judgment on October 24; the Guild can file its response to the amicus briefs by November 19; final briefs in support of the cross-motions for summary judgment are due on the same day; and oral argument on the cross-motions for summary judgment will take place on December 4. Relevant documents appear below.