Is Google's Massive Book Scanning 'Fair Use'? Appeals Court Raises Possibility

The long-running legal battle between Google and those who oppose its ambitious project to scan virtually every book ever published took a new turn this week. Judges on the 2nd U.S. Circuit Court of Appeals pressed both sides in a class-action lawsuit to respond to the idea that the search giant’s actions might be covered under the concept of “fair use.”

Back in 2005, Google embarked on its massive book-scanning project to fulfill co-founder Larry Page’s long-held dream to build a digital “library to last forever.”

The company negotiated deals with a number of  leading academic libraries to begin scanning books, including many rare and out-of print-books, at a very rapid pace -- to the point that by 2011 it had scanned a total of some 15 million titles. Individual authors can [and do] opt in to Google’s scanning project, which means their books will show up in search results, potentially leading to new sales.

Meanwhile, Google was sued by the Authors Guild and the Association of American Publishers, and the negotiated settlement of that class-action lawsuit has been under judicial review ever since. A grass-roots coalition organized by Bay Area activists has long campaigned against Google's project, on the basis it would result in the Mountain View-based company having a monopoly over the future sale of digital books.

Others eventually joined what the New York Times called an "army" opposing the settlement, including Yahoo, Microsoft, a number of European governments and, most significantly, the U.S. Justice Department.

One of many unresolved issues in the case is the fate of so-called orphan works, for which no rights holder can be found. These works languish in a kind of copyright purgatory. Judge Denny Chin suggested two years ago that this was a matter for Congress to take up:

"The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties."

This week’s development, bringing the “fair use” concept into play, might indicate that the eight-year battle between Google and its opponents might finally be turning in Google’s favor.

If so, the next question is what Google would choose to do with its “library to last forever.” Perhaps turn it into the world’s largest bookstore?