Chin should have addressed this issue more at length in his decision, Parness said, and not given so much weight to the benefits of Google Books as a reason for justifying the copying.
"The suggestion is that if a particular unauthorized use of copyrighted materials becomes 'essential' or 'important' to society, the fact that it was brought about by brazen, unapologetic copying becomes far less important," Parness said via email.
"It gives rise to the dangerous idea that allowing society to become accustomed to -- or even reliant upon -- such widespread commercial copyright infringement will damage the ability of the rightsholders to obtain relief," he said.
But Band argued that it's common in fair use cases to give weight to the societal benefits. "That was exactly the right way to view this issue," he said.
Eric Goldman, a professor at Santa Clara University School of Law, said the case could potentially establish important precedents. But the appeals process must first be exhausted, which could mean waiting for a Supreme Court decision, if the case makes it that far.
In addition, fair use cases tend to have limited implications for case law because they usually involve facts and circumstances specific to their situation, said Goldman, who has filed briefs in this case over the years, at times in favor of Google and at other times against it.
Chin seems to have taken into account specific elements that helped Google. For example, he remarked in his decision that Google "does not engage in the direct commercialization of copyrighted works" and that the company took steps to prevent people from viewing large amounts of copyright text. The judge also said that Google Books benefits authors by making their books easier to discover, and helps them with sales by providing links to online stores that carry the titles.
If Google had pursued more direct and aggressive monetization strategies via prominent ads displayed on Google Books search result pages, the judge might have ruled differently, according to Goldman. "Even minor changes in fact can alter the equities of a [fair use] case," he said.
This means another company shouldn't assume it can build a Google Books competitor and be automatically shielded from an Authors Guild lawsuit, he said.
Band concurred. "It's easy to overstate the importance of the case," he said, noting that the judge took into account that Google and its library partners "have acted very responsibly and in a way that's very respectful of the rightsholders." In particular, Chin couldn't have been convinced that Google Books hurt authors by usurping their sales, Band said.
It's possible that as a result of the district court decision, there will be more investment and innovation in search services for other types of works, according to Matthew Schruers, vice president of law and policy at the Computer & Communications Industry Association (CCIA), which supports Google, one of its members.
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