A new video mash-up culture

Vine exists because of new smartphone technology but it also replicates older forms of mashup culture. In particular, it mirrors what pioneering hip-hop artists started to do in the 1980s — taking sounds from myriad sources and sharing them through records like Paul’s Boutique and Ready to Die. Those hiphop records are aural tapestries that today stand as monuments to a new form of music and community. In the 2000s, however, copyright collectors came along and sued the rappers — resulting in a drawn-out debate over where to draw a line between culture and intellectual property theft. Hip-hop  largely prevailed but was damaged in the process. Now, a fight over a Vine video last month suggests history may repeat itself but this time, on the video front. The dispute involved the musician Prince using a law called the DMCA to force Vine to take down six-second concert clips posted by a fan. The fan didn’t oppose Prince’s takedown demand, meaning no has ruled on whether a six-second clip actually infringes copyright. But if a court did look at the Vine case, the decision process would lead right through hip-hop.

Hip hop, copyright and six second samples

In the 1990s, hip-hop artists called the sounds they use “samples.” Copyright owners, however, called it theft instead and sued the musicians. The conflicts led to important court decisions about music, but whose principles apply equally to Vine. As the Disco Project explained in a thoughtful analysis of the Prince case, the most relevant precedents involve the Notorious B.I.G. and the Beastie Boys. Both were involved in famous cases involving short samples. In the case of the Notorious B.I.G., a Tennessee court shut down store sales and radio plays of the late rapper’s “Ready to Die” album, and a jury awarded $4 million in damages — all over a three note horn riff. An appeals court, which had earlier written “get a license or do not sample,” upheld the verdict in 2007. As law professor Tim Wu explained at the time, the case and others like it were especially absurd because the copyright owner was not even a musician but a one-man corporation who had obtained the music rights under shady circumstances. Fortunately, in the case of the Beastie Boys, a California appeals court took a more rational approach to the issue and ruled that a six second (the same length as a Vine video!) flute sample on the song “Pass the Mic” didn’t infringe on copyright. The Supreme Court, in 2005, refused to reconsider the decision. The upshot, however, is that today we still don’t know for sure how long a sample can be before it infringes copyright. Twitter declined to comment on whether it believes Vine videos are covered by copyright law’s “fair use” exception, but a source familiar with the company told me that the decision to make the videos six seconds long was not a coincidence.

Chilling our new visual culture

The trouble with Prince’s request to take down the Vine videos is not so much the disappearance of the videos themselves — but instead that Vine and other forms of visual expression could meet the same fate as early hip-hop. When the Beastie Boys released their sample-stuffed 1989 masterpiece, Paul’s Boutique, the law was still in a gray area and no one was suing hip-hop artists. That’s no longer the case. As copyright scholars have explained, the threat of lawsuits and the astronomic cost of clearing samples means, today, no one could make an album like Paul’s Boutique in the first place. And that’s the danger posed by Prince. Right now, we’re enjoying a rich new age of images — everything from Vine videos to BuzzFeed cat GIFs that are shared, recast and then shared again. If lawyers began to throw copyright grenades into this mix, these splendid strains of creativity could be quickly snuffed out. Does this mean that all Vine videos should be fair use? It’s hard to say. People are already using the platform to produce clever and original works of art — the sort of thing copyright law is meant to reward. Likewise, big companies who use Vine for marketing have a case for using intellectual property law to protect their brands. It seems inevitable that these issues will get resolved sooner than later. The biggest task for now, though, is to find a way to do so without resorting to the harsher tools of copyright law, including the $150,000 damage demands that are a common feature of cease and desist letters. Congress is right now reviewing the Copyright Act. The process presents a perfect way to protect and foster this emerging age of visual culture — rather than try to smother it like hip-hop. But let’s give the last word to the rappers (click on the Vine vid below) : (Image by R. Gino Santa Maria via Shutterstock)

On the surface, the hearing was supposed to determine if a lower court made a mistake last year when it ruled that the case could proceed as a certified class action, meaning that the Authors Guild can seek damages from Google on behalf of every writer whose book was scanned.

The three appeals court judges, however, appeared less interested in the technical aspects of class actions than they were in tackling “fair use” — a four part test that examines whether a given activity (in this case Google’s book scanning) should be exempt from copyright.

“Shouldn’t we address that first?” asked Judge Pierre Leval, a noted fair use scholar, adding that the issues in the case appeared to be “out of sequence.”

Leval and fellow judge Barrington Parker appeared sympathetic at times to Google’s position that the book scanning is transformative and acts as a discovery method, rather than as a replacement for book sales. They suggested that the lower court should address the fair use issue sooner than later.

“If the case is continued, you could face decades of litigation,” said Parker. “This project, with potentially enormous value for our culture, has this great cloud hanging over it.”

Judge Leval also suggested that the book scanning may be analogous to a famous fair use case known as “Perfect 10,” in which a California case held that showing thumbnail images in search results is fair use — even though the entire image is reproduced.

One or many lawsuits?

Google’s lawyer, Seth Waxman, reiterated Google’s position that the scanning is transformative but argued that the court should decertify the class, and require the plaintiffs to proceed individually — rather than as a unified block.

The search giant’s position is that the millions of authors in question have very different perspectives on the scanning — and that many of them support it. The latter, Google said, shouldn’t be forced into a lawsuit they don’t support. In its earlier filings, Google produced a survey that said many authors like the idea of having snippets of their books appear in the company’s search results.

The appeals court, however, appeared reluctant to break the case into multiple baskets of plaintiffs, and questioned if this would lead to separate cases for every type of book.

“You’re going to have to get this resolved. Are you going to have five, 10, 20 different lawsuits? Poetry, science, math table ligation?” Judge Parker wondered

The Authors Guild, meanwhile, wants to go ahead with the fair use ruling, at trial if necessary, without distinguishing the different types of books and authors at issue — a potentially risky proposition for the Guild too.

The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing.

The judges also asked LaRocca to explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.”

What next: some possible end games

It’s risky to read legal tea leaves from the questions judges ask. But, in this case, the appeals court appeared to be strongly considering remanding the case for a ruling on the fair use question — a decision that could then be appealed back to the Second Circuit.

The situation, however, is complicated by internal judicial politics. Specifically, the lower court judge who would have to take up the fair issue is Denny Chin — who now sits on the Second Circuit as a colleague of the three judges who heard today’s hearing. In the past, Chin has shown more sympathy to copyright owners than Leval; the trick for the appeals court, then, is to hand the case back to Chin with obvious guidance, but without upbraiding his handling of it so far.

There is also, of course, the question of money. Google has enough cash to litigate to the Supreme Court and back without breaking a sweat. The Authors Guild, on the other hand, may be feeling stretched as it pays for the appeals in the current case, while also pursuing a parallel case, known as HathiTrust, against a group of university libraries.

At the Tuesday hearing, the Authors Guild’s attorney said paying up would cost Google just 90 days of earnings — or around three billion dollars. It’s an interesting idea, but it’s not going to happen.

First, Google can litigate this thing till the cows come home. Second, the actual amount at issue is much less than the extravagant multibillion dollar figures flashed in numerous headlines. As I’ve explained before, the Authors Guild is seeking $750 per scanned book — but the actual number of books that would qualify is far fewer than the overall number of what Google has scanned.

Another possible outcome is that the appeals court agrees with Google’s request to decertify the class. This would likely force the Authors Guild to pack up and go home, leaving the handful of individual author plaintiffs to take on Google’s mighty lawyer machine out of their own pockets — game over, in other words.

Finally, the two sides may enter settlement negotiations (if they haven’t already) to permit the Authors Guild to enjoy a symbolic victory and, possibly, recoup some of their legal fees, while letting Google appear as a good guy. But don’t count on this, especially, if Google believes it can win the fair use ruling.

To read more background and insider details on the whole saga, see my e-book: “The Battle for the Books: Inside Google’s Gambit to create the world’s biggest library.”

The controversy turned  on art projects in which Prince incorporated photographs from Yes Rasta, a portrait book about Rastafarians by photographer Patrick Cariou. In some cases, Prince altered the photos so the originals could barely be recognized:

But in other cases, Prince made only minor alterations, such as adding face blotches and a blue guitar:

Cariou, who earned about $8,000 from the sale of his book, sued Prince for copyright infringement. Prince, whose individual works fetched up to $2 million, argued that his modifications amounted to a “fair use” exception under copyright law.

In 2011, a federal judge sided with Cariou and issued an injunction against Prince and an order for any unsold works to be destroyed (they were not).

Can judges be art critics?

In her decision, U.S. District Judge Deborah Batts concluded that Prince’s work was not transformative — and did not qualify for fair use — because it didn’t satirize or otherwise comment on the original photographs. On appeal, a unanimous three-judge court wrote that Batts got the law wrong and said there was no such requirement under fair use.

Citing Andy Warhol’s Campbell Soup cans and the rap group 2 Live Crew’s parody of “Pretty Woman,” the appeals court noted that many fair use cases did indeed comment on the original, but that this was not essential. In the case of Prince, the court said, his works are transformative in part because they are “hectic and provocative” compared to Cariou’s serene and beautiful photographs.

On a technical level, the “transformative” requirement is just a sub-step in one part of a four-pronged fair use analysis. Increasingly, however, it’s also becoming a shorthand for courts to determine if someone is using an image in a new and legitimate fashion, or just ripping off and devaluing the original.

In resolving the Prince case, the appeals court found that 25 of the 30 images were transformative but added that it did could not say “confidently” whether five of the others — including the blue guitar picture — were as well. It returned the case to the original judge to mull over the five pictures in more detail.

One of the three appeals court judges stated, however, that he was uncomfortable acting in the role of art critic and that the original judge should re-evaluate all 30 pictures with the help of expert opinion and other evidence:

So what is “transformative” on the internet?

The Prince decision could affect not just the art world, but internet culture as well. That’s because the decision comes at a time when images are becoming ever more central to online news and social media platforms — and while the rules for using them are unclear.

Sites like BuzzFeed, for instance, have taken an aggressive approach to image appropriation, declaring that almost any use is “transformative.” This approach is well-suited to the fast-paced, mash-up style of internet journalism but is also a source of frustration to photographers and others who feel artists deserve more control over their work.

The Prince ruling, while not a green light for anyone to use photographs as they see fit, appears to provide broader legal cover to appropriation artists and experimenters. Here’s the decision itself with some of the more significant passages underlined.

A previous version of this article stated that the “Pretty Woman” parody was by Salt-n-Pepa. It was by 2 Live Crew.

Cariou v Prince, 2nd Circ

The case has important implications for the news industry and for the ongoing debate about what counts as “fair use” under copyright law. Here’s a plain English explanation of what the case is all about and what it means for content creators and free speech.

Fair use or a free ride? The facts of the case

The defendant in the case is Norway-based Meltwater, a service that monitors the internet for news about its clients. Its clients, which include companies and governments, pay thousands of dollars a year to receive news alerts and to search Meltwater’s database.

Meltwater sends its alerts to client in the form of newsletters that include stories from AP and other sources. Meltwater’s reports include headlines, the first part of the story known as the “lede,” and the sentence in the story in which a relevant keyword first appears. The Associated Press demanded Meltwater buy a license to distribute the story excerpts and, when the service refused, the AP sued it for copyright infringement.

Meltwater responded by saying it can use the stories under copyright’s “fair use” rules, which creates an exception for certain activities. Specifically, Meltwater said its activities are akin to a search engine — in the same way that it’s fair use for Google to show headlines and snippets of text in its search results, Meltwater said it’s fair use to clip and display news stories.

The case has divided the tech and publishing communities. The influential Electronic Frontier Foundation filed in support of Meltwater, arguing that AP could inhibit innovation and free expression if it succeeds with the copyright claim. On the other side, the New York Times and other news outlets filed to support the AP; they claim Meltwater was simply free-riding and that the company is undermining the ability to create the sort of journalism on which a free society depends.

A clean win for the AP

In a decision published Thursday in New York, U.S. District Judge Denise Cote shot down Meltwater in blunt language. While much of the 90-page ruling covers procedural issues and other defenses put forth by Meltwater, the heart of the decision is about fair use.

To decide if something is fair use, courts apply a four-part test that turns in large part on whether the defendant is using the copyrighted work for something new or unrelated to its original purpose. Famous examples of fair use include a parody rap song of “Pretty Woman” and Google’s display of thumb-size pictures in its image search. In the AP case, however, Meltwater’s fair use defense failed.

Judge Cote rejected the fair use claim in large part because she didn’t buy Meltwater’s claim that it’s a “search engine” that makes transformative use of the AP’s content. Instead, Cote concluded that Meltwater is more like a business rival to AP: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”

Cote’s rejection of Meltwater’s search engine argument was based in part on the “click-through” rate of its stories. Whereas Google News users clicked through to 56 percent of excerpted stories, the equivalent rate for Meltwater was 0.08 percent, according to figures cited in the judgement. Cote’s point was that Meltwater’s service doesn’t provide people with a means to discover the AP’s stories (like a search engine) — but instead is a way to replace them.

The judgement also points to the amount of content that Meltwater replicated. Whereas fair use allows anyone to reproduce a headline and snippets, Cote suggested Meltwater took “the heart” of the copyrighted work by also reproducing the “lede” and other sentences:

“A lede is a sentence that takes significant journalistic skill to craft.  [It shows] the creativity and therefore protected expression involved with writing a lede and the skill required to tweak a reader’s interest.”

The ruling added that Meltwater had taken more of the story than was necessary for a search engine and that its economic harm to AP also weighed against finding fair use. And, in a line that likely had news agencies clicking their heels, the judge wrote:

Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression [...] Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.

These are what I regard as just some of the most important points of a very long decision. You can read it for yourself below; I have underlined key passages.

Common sense or a chill on free expression?

The decision has already caused concern on the part of internet freedom advocates. Techdirt’s Mike Masnick, for instance, says the ruling has “a ton of problems” and that Cote misapplied the four-part fair use test.

Meanwhile, the company has vowed to appeal and and its CEO claims to be “especially troubled by the implications of this decision for other search engines and services that have long relied on the fair use principles for which Meltwater is fighting.”

Meltwater is likely to face an uphill battle on appeal, however. Cote’s ruling is exhaustive and the Second Circuit Court of Appeals is regarded by many lawyers as sympathetic to the hometown publishing community.

The impact of the ruling, however, will be determined by how far it ripples beyond Meltwater. As all of the clipping service’s competitors have already paid AP for a license, the impact could be insignificant for everyone but Meltwater while, at the same time, boosting the AP’s resources for gathering news.

On the other hand, the ruling could embolden the AP and other news outlets to file more lawsuits. While this could bring more licensing revenue for journalism, it may also produce a phenomenon like what is occurring in France and Germany where publishers are treating copyright like a tax to protect outdated industries — and chilling online innovation in the process.

Meltwater AP Ruling

(Image by Pixelbliss via Shutterstock)

There are elements of the Hathi Trust decision that make it different from the issues raised by the Google case, since it involves universities rather than a corporate entity, but the bottom line is that a federal court has decided scanning of books for search purposes is not an infringement of copyright — or rather that this activity is covered under the principle of “fair use,” and therefore should be allowed to continue. And in my opinion (and that of many others) the court was right to do so.

Some authors and publishers clearly don’t like the concept of fair use as it applies to books, because they believe it infringes on their rights as creators and owners of intellectual property — that is, the right to control whatever happens to their work, in any context. But the court reiterated that fair use exists for a crucial reason: namely, to allow others to transform and re-use parts of copyrighted works for artistic or other socially-beneficial purposes. And whether the Guild likes it or not, scanning books so that they can be indexed and searched clearly falls within that description.

The court accepted the fair-use case without a trial

One sign of how clearly the court believes this is that Judge Harold Baer’s decision was a summary judgement, meaning he didn’t think there was any point in even going to trial to argue the details of the case. As a post at the Copyright Librarian points out, “winning on summary judgment means the court agrees your arguments are a slam-dunk.” In his decision (which is embedded in full below), the judge says:

“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use… I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.”

The parts of the Hathi Trust case that make it distinct from Google’s battle with the Authors Guild have to do with the purposes for which the books were being scanned. For example, Judge Baer found that protecting old works from physical deterioration by scanning them was a “transformative use” (one of the four factors the courts take into account when deciding whether something should qualify as fair use), and that making digital books available for the use of visually impaired and other handicapped users was also an important element of the program.

Those kinds of arguments likely wouldn’t hold as much weight for Google itself, except as they apply to scholarly works that are provided to universities and projects like the Hathi Trust. A big part of the Authors Guild case rests on the fact that Google is a corporation with a profit motive, and therefore shouldn’t be allowed to scan copyrighted books without permission, even if its index makes them easier for buyers to find and purchase (Google also shows excerpts or “snippets” for all of the books that it scans, while the Hathi library only shows excerpts for public-domain books).

Indexing books for search is clearly fair use

But even here, the Hathi Trust case provides a substantial amount of ammunition for Google’s defence, because Judge Baer ruled that scanning books for the purpose of indexing them and making them searchable was an important transformative use — something that has also been found in other similar copyright-infringement cases against Google (such as the Perfect 10 lawsuit involving the use of thumbnail images). And that transformative use, he suggested, outweighs other factors such as the potential impact on the commercial market for the works in question.

Quoting from a previous court decision, Judge Baer said: “A copyright holder cannot pre-empt a transformative market.” And he dismissed the Authors Guild argument that scanning and indexing a book doesn’t qualify as a transformative use because it copies the entire book exactly, rather than making use of a part or adding something to the original work:

“The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material… Plaintiffs’ argument that the use is not transformative merely because defendants have not added anything ‘new’ misses the point.”

In the end, Judge Baer said that his decision was determined by the original goal of copyright law, which is to promote research and knowledge. As he put it: “The ultimate focus is the goal of copyright itself [and] whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’” His ruling makes it clear that the Hathi Trust project met that test, and based on his arguments there is every reason to believe that Google could win its case on similar grounds — and that would be in everyone’s best interests, as much as the Authors Guild would like to believe otherwise.

Post and thumbnail images courtesy of Flickr users Marcus Hansson and Marya

In its order, the New York court agreed to stay proceedings in a lower court while it reviews Judge Denny Chin’s decision last May to certify the class action — a move that allowed authors and illustrators to go forward with claims that Google scanned their works without permission.

The proceedings began in 2005 when the Authors Guild filed a copyright suit over Google’s decision to scan the world’s books. The lawsuit was on hold for several years as the parties tried to get court approval for a settlement that would have created a market for the books. The settlement failed, however, and the Authors Guild resumed legal action last December. The Guild is seeking $750 per book, but only a relatively small number of authors would qualify.

Today’s decision means that the overall case will be on hold for several months. If the appeals court upholds the certification order, it will likely return the case to Judge Chin (who is now on the Second Circuit too) with detailed instructions about how to proceed.

The big issue in the case now is whether or not Google’s scanning constituted “fair use,” which is a defense against copyright infringement. Several scholarly and librarian groups have intervened in Google’s favor in the hopes that the massive digital collection can be used for research purposes.

Meanwhile, a parallel case is playing out between the Authors Guild and the Hathi Trust, a coalition of universities that has collected copies of Google’s book scans. If that case is resolved first, it is likely to determine the fate of the Google Books class action.

Here is a copy of today’s order:

CA2 Order Granting AG Stay

In a short order, Judge Denny Chin rejected Google’s request to suspend the case while it goes before the US Court of Appeals for the Second Circuit. Chin noted that a stay would delay the case “by a year or more” and told Google and the Authors Guild, which is representing writers in a class action, to stick to the current schedule. That schedule calls for them to file arguments ahead of a December court hearing.

The case has taken on new life after Judge Chin’s decision in 2011 to reject an elaborate three-way settlement between Google, publishers and the Guild. The settlement would have resolved the Authors Guild’s original 2005 copyright lawsuit. The Guild is now asking Google to pay $750 for every registered work it scanned without permission.

Recently, the lawsuit has turned into a procedural thicket after the Second Circuit agreed to let Google appeal Chin’s decision earlier this year to certify the class (an important procedural hurdle that lets the Guild sue on behalf of all writers).

Chin’s latest ruling creates an unusual situation in which the books case is now before him and the appeals court at the same time. The situation is even more unusual because Chin himself now sits on the appeals court (although he has of course recused himself from hearing the Google appeal).

As it stands, the appeals court will hold a phone hearing for Google and the parties in October while the parties are slated to appear before Chin in December. Chin also recently granted permission for scholars and librarians to file “friends of the court” briefs in support of Google; many in the academic community believe the scanning will help in research.

In an order this week, Judge Denny Chin granted permission for two groups to intervene in the case: one is the Digital Humanities Scholars and Law Professors; the other is a group representing the Electronic Frontier Foundation, the American Library Association, the Association of College and Research Libraries and the Association of Research Libraries.

The Authors Guild had opposed giving the groups permission to file amicus curiae (“friend of the court”) briefs. Such documents typically provide extra legal ammunition to one side or the other.

The academic community and the EFF are weighing in because they want to use the Google case as a means of expanding “fair use,” a legal doctrine that provides an exception to copyright in the case of research, reporting and certain other activities.

Chin’s order (below) also set out a timetable that allows the Authors Guild to reply to the new filings by September 17. It also instructs Google and the Authors Guild by the same date to file final papers in support of summary judgment — a procedure that could let Chin decide the case without a trial. The judge said the parties are to make their arguments in court on October 9.

Chin’s schedule is something of a surprise given that the US 2nd Circuit announced this week that it would hear an appeal of the same case. I had written earlier that Chin was unlikely to move the case forward given that whatever decision the appeals court makes must inform his own rulings.

UPDATE: James Grimmelmann has just reported that filings and oral arguments have been moved to December.

The Authors Guild is asking Google to pay $750 for book with a registered copyright that it scanned without permission. Google has scanned more than 20 million worldwide but the amount covered by the Authors Guild suit are only a fraction of that.

The new order was first reported by Publishers Weekly. The document is below:

Google Books Amici Grant

These are among the details set out in a new court filing by the Authors Guild, which is locked in a long-running case over the search giant’s decision to digitize libraries.

The filing points to internal Google documents in an attempt to show that the scanning was an overtly commercial project, and that the scanning was not a fair use as Google is claiming.

In a 2003 internal Google presentation described in the filing, the company stated “[we want web searchers interested in book content to come to Google not Amazon.”

As annotated by the Authors’ Guild, the 2003 Google presentation also said “[e]verything else is secondary … but make money.” (The presentation was filed under seal so the context of the remark is unclear).

The Authors Guild filing, which asks Google to pay $750 per book, also reveals new details about how Google went about the massive scanning project which has produced more than 20 million digital titles since it began almost 10 years ago.

To carry out the scanning, Google used more than 300 machines and hundreds of contractors at locations near Boston, Ann Arbor and Mountain View, California. Google has now scanned more than 20 million titles, eight million of which are English language works still under copyright.

These new details come at a time when the long-running lawsuit, which began in 2005, is headed to an end game. The suit was on ice for several years as Google and the Authors Guild collaborated on a settlement rejected by the court in 2010 Now, both sides are sharpening their arguments over the whether the scanning is a fair use permitted under copyright law.

Google argues that the scanning has not cost authors any money and that it has produced innumerable benefits to scholars and libraries. The Authors Guild, on the other hand, argues that Google’s scanning was a high-handed unilateral decision that abrogates the role of traditional rights clearing agencies. The Guild also warns the digital collection could be subject to sabotage or hacking.

The next big date for the parties is October 9th when the parties will again appear before Judge Denny Chin to argue the case can be decided without a trial.

Google Books Statement of Facts Aug 2012

According to Google, its massive book scanning project is fair use because the scanning has delivered many public benefits without harming authors. The company claims that its creation of full-text book searching is “the most significant advance in library search technology in the last five decades” and that the Authors Guild has shown “no evidence that Google Books has displaced the sale of even a single book.”

The new filing (embedded below) is in response to Judge Denny Chin’s deadline for Google and the Authors Guild to submit arguments on why the case can be decided without a trial. This is just the latest phase of a legal dispute that began in 2005 after authors and publishers sued Google over its ambitious plan to create a massive digital library. The lawsuit was on ice for several years as the parties worked out a settlement that would have created an online market for the books. Judge Chin blew up the settlement in March 2011, however, after concluding that it was a “bridge too far.”

Chin now has to decide whether Google must pay for scanning each book without permission or whether the scanning amounted to “fair use.” The test for fair use involves looking at four factors, including whether the copying was “transformative” as well as the reproduction’s effect on the market for the original work.

In its filing, Google cites a number of pop culture examples to argue that a searchable digital library is a benefit to the public. For instance, Google cites an Atlantic article (“The Foreign Language of Mad Men”) that relied on a Google Book search to show that characters in the hit show Mad Men were using dialogue from a later era. The company also describes how book searches unearthed references to an unheralded baseball player, Steve Hovley, that would otherwise have remained buried. And Google cites the more serious example of Minoru Yasui, a civil rights lawyer who is all but invisible in the Library of Congress catalog but surfaces repeatedly in Google Books.

Google also cites evidence suggesting that online book discovery helps authors sell more copies. It quotes a memo from literary agency William Morris that says “inclusion in Google Books is a fair use and not detrimental to the copyright owner in any way” and points to the Authors Guild’s own suggestion that writers make a chapter of their book freely available on the internet.