The major Hollywood studios were not pleased Monday after the Supreme Court declined to hear the appeal of a decision that it was OK for Google to digitize millions of books and make them available online without compensating the copyright holders.
In a blog post after the High Court denied cert, the Copyright Alliance, whose members include Disney, Sony, Universal and Viacom, said the court had missed a "golden opportunity" to at least clarify how the fair use doctrine should apply to digital media and new technologies for which it argues there is no adequate fair use test.
The alliance says that the court's ruling was based on the "dubious" finding that "Google’s mass digitizing effort was a fair use because the Google Books project conveys 'information' about the works to users and therefore transforms the books."
The court relied on the "transformative use" test to draw that conclusion based on a 20-year-old decision that the more a work was transformed, the fewer other factors have to be met for it to be considered fair use. One of those factors is the creation of a new, expressive, work, which studios argue didn't happen by Google simply digitizing the works.
“The Supreme Court’s decision to let the Second Circuit’s ruling stand reflects what we have long said: that fair use is a powerful and flexible doctrine that enables not only new works, but also innovative uses of existing works," said Raza Panjwani, policy counsel with Fair Use fan Public Knowledge.
“The Justices were apparently unpersuaded by the plaintiffs characterization of the Second Circuit’s opinion as a ‘a radical rewrite of copyright law.’ To the contrary, courts have long held that new uses of creative works, especially those that increase the public’s access to those works, are permissible fair uses, ranging from displaying image thumbnails in search engine results to recording copies of television shows for later viewing. We can now add ‘empowering researchers from around the globe to search millions of books to identify relevant volumes in seconds’ to that list."
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