Google Inc.'s massive effort to scan millions of books for a digital library violates copyright law, illegally depriving authors of licensing fees, royalties and sales, a lawyer for a group of authors told a U.S. appeals court Wednesday.
Paul Smith, who represents the Authors Guild and several individual writers, told a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York that the Google Books project was a "quintessentially commercial" infringement designed to protect the company's "crown jewel" search engine.
But Seth Waxman, a lawyer for Google, said the project "revolutionized" how people find books and, contrary to the authors' claims, would actually boost sales by introducing works to more readers.
"There is no evidence in this record, none, of any market harm to the authors,'' he said.
The writers are appealing a November 2013 decision from a federal judge in New York, Denny Chin, dismissing the long-standing litigation.
Chin found the technology giant's scanning of more than 20 million books and posting "snippets" of text online constituted "fair use" under U.S. copyright law, saying it provided enormous benefits to the public while sufficiently protecting authors' rights.
Google has said it could owe billions of dollars in damages if the authors prevail in the lawsuit.
But the authors may face an uphill battle at the appeals court. In a separate case in June, the 2nd Circuit rejected similar claims from the Authors Guild against a consortium of universities and research libraries that built a searchable online database of millions of scanned books.
On Wednesday, U.S. Circuit Judge Pierre Leval — recognized as a preeminent expert in copyright law — said most examples of fair use are commercial in nature, such as newspapers that quote from copyrighted works.
"I would be surprised if you're going to win the case by pointing out that Google, like The New York Times, is a profit-making enterprise," he told Smith.
Google launched the project in 2004 after agreeing with several major research libraries to digitize current and out-of-print works from their collections.
The three individual plaintiffs in the proposed class action include former New York Yankees baseball pitcher Jim Bouton, who wrote the classic memoir "Ball Four."
The appeals court decision is likely at least several months away.
