Don’t wait for Congress to fix fair use, says judge in Google Books case

The federal judge in the long-running case between Google and the Authors Guild made clear that no one should hold their breath waiting for Washington to decide if the search giant’s scanning of 20 million library books amounts to a “fair use” under copyright law.

“Does anything get done in Congress these days?” mused US circuit judge Denny Chin, rejecting a call by authors’ lawyers to hold off on deciding the fair use question. He added that Congress has already proven incapable of solving the problem of “orphan works” books. This means that Judge Chin is likely to make an up-or-down decision soon on whether Google’s scanning was legal under “fair use” — a four-part test that looks at factors like the purpose of the copying and its effect on the original market. Judge Chin must now decide whether to bite his tongue and declare that Google’s scanning was a form of fair use — and accept what amounts to a “no harm done” theory from Google — or else say it was not fair use, in which case Google will almost certainly appeal the matter back to his colleagues.