A New High-Water Mark on Transformative Use — Update on the Google Books Case

Lois WasoffIn his written opinion affirming an earlier find that Google’s book scanning project was “fair use” under U.S. copyright law, Judge Pierre Laval did more – and also less – than hand the search engine giant a win in court, notes attorney Lois Wasoff.

As Wasoff explained during a Copyright Clearance Center-sponsored special webinar last week updating publishers and authors on the latest news in the so-called Google Books Case, the ruling was more than just a win for Google because Laval expanded our understanding of what makes a “transformative use” of copyrighted material; indeed, Laval emphasizes the transformative purpose of Google’s scanning over its use. And it was also less than a win for Google because the finding on the facts may severely limit the decision’s implications for any future scanning efforts.

“Judge Leval reached that conclusion by going through, in painstaking detail, exactly what Google is – and isn’t – doing with the scans it created,” Wasoff tells CCC’s Chris Kenneally. “He then subjects the specific facts of this situation to a rigorous analysis under the four Section 107 fair use factors — nature and purpose of the use; nature of the work; amount of the taking; and market impact — and discusses each one in turn.”

The Laval opinion is further fascinating for coming from the originator of “transformative use” as favoring a fair use finding in such copyright infringement cases. Wasoff noted. In 1990 in a Harvard Law Review article, Pierre Laval first articulated this idea, planting the seed for landmark findings in a number of cases, especially Campbell v. Acuff-Rose – the so-called “Pretty Woman” case.

Lois Wasoff has established a legal and consulting practice specializing in copyright and trademark matters, with a focus on publishing-related issues. She works with publishers, not-for-profit organizations, individuals with publishing- and intellectual property-related concerns, and law firms seeking expert support in a specialized area of practice.

For more informative content on copyright issues, visit www.copyright.com/education.

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