fair use

The Second Circuit appeared skeptical during oral argument Tuesday over the Authors Guild's claim that it's not fair use for Google to scan millions of out-of-print books and post them online, Gigaom's Jeff John Roberts reports. The guild argued the scanning project is not fair use because it is commercial in nature, Roberts reports, which was a shift in strategy after "Judge Denny Chin awarded a decisive victory to Google in November of last year by throwing out the Authors Guild’s class action suit, after concluding Google Books was 'highly transformative.'"

The New York Times reports on the copyright issues photographers face: "Technological advances, shifting artistic values and dizzying spikes in art prices have turned the world of visual arts into a boxing ring for intellectual-property rights disputes. Photographers, in particular, are complaining not only that their work is being stolen by other artists, but also that their ability to create new work related to their originals is also being compromised." At issue is whether fair use protects must of that alleged infringement. Mickey H. Osterreicher, general counsel for the National Press Photographers, told the Times they would like to see a small-claims copyright board created by Congress to resolve the bulk of disputes, most of which are in the range of a few hundred dollars. But Osterreicher also said that a legislative fix isn't likely anytime soon.

Forbes contributor Eric Goldman writes that Judge Denny Chin's decision last week that Google's book-scanning project is a fair use under copyright law is a big deal in some ways and a not so big deal in other ways.

Among the ways that the ruling is a big deal:

1. It strengthens Google's position as the go-to search engine.

2. It adds to the canon of search engine law (of which there is not a lot).

Among the ways that the ruling isn't a big deal:

Fair-use rulings are specific to each case so "it would be a mistake to overassume the opinion’s broader implications for fair use on the Internet," Goldman opines.

Google's book-scanning project has been ruled to be a fair use that doesn't violate copyright law, GigaOM reports.  Judge Denny Chin, who now sits on the Second Circuit, ruled that the digitization of the books did not violate the authors' copyrights because the scanning project is "'highly transformative' and because it didn’t harm the market for the original work," GigaOM also reports.

The maker of a mockbuster film about hobbits didn't have any luck in arguing that they weren't infringing on the trademarked fictional creatures from JRR Tolkien's Lord of the Rings series. According to the Hollywood Reporter, Global Asylum tried to argue that it was fair use to make a film referencing hobbits because it's a "reference to a real-life human subspecies, Homo Floresiensis, discovered in 2003 in Indonesia." The Ninth Circuit affirmed a lower court ruling this week.

The long-running putative class action between Google and the Authors Guild and other content producers over Google's project in which it has digitized over 20 million books was back in federal court yesterday.

Reuters reports that Judge Denny Chin appeared to favor the fair use argument by Google, which is seeking to immunize the claims of copyright infringement brought by the plaintiffs. Chin said that Google's project has helped people get information, including law clerks in his chambers, Reuters reported of the oral argument.

The Second Circuit ruled that Chin prematurely approved class certification for the authors without deciding if the fair use defense applies. While Chin is a circuit judge himself now, he retained jurisdiction, Reuters reported.