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1/26/2006
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Google Wins Nevada Copyright Case

A judge found that serving pages of a story on a writer's Web site, from the Google cache, was protected under the Digital Millennium Copyright Act. This ruling could help Google with other legal issues it's facing in its bid to scan books and other copyrighted materials.

A Nevada judge has ruled in favor of Google Inc. in a copyright case that legal experts said Thursday could be helpful in its defense against lawsuits filed by writers and publishers challenging the search engine's initiative to scan and store copyrighted library books.

The U.S. District Court ruled this month that Google's copying and caching of a story that author and attorney Blake Field posted on his Website did not violate copyright law.

In issuing the ruling, federal Judge Robert Jones found that serving pages from the Google cache was protected under the Digital Millennium Copyright Act, which allows service providers to provide links to material on the Web; and that Field chose not to use a meta tag on his page to prevent it from being searched and cached.

Most importantly, as it relates to the library project, Jones found that Google's storage of the material was "fair use" under copyright law. In defending the library project, Google points to fair use, an exception in the U.S. Copyright Act that allows for the reprinting of portions of copyrighted material for certain purposes, such as criticism, comment, news reporting, teaching, scholarship and research.

Jonathan Band, a Washington, D.C., attorney specializing in intellectual property rights, said the finding helps Google, based in Mountain View, Calif., because it confirms the search engine's fair-use argument.

"This is a useful precedent for Google," Band said.

In addition, Google's library project offers less material than in the Field case. In the library project, Google says it would only show snippets from copyrighted books, unless it has permission to display more. In the Field case, Google displayed the whole story.

"Arguably, what Google is doing in the library project is more modest," Band said.

Deborah A. Wilcox, an IP attorney at the Cleveland law office of Baker and Hostetler LLP, said the Nevada ruling could have a "marginal impact" in favor of Google in the library case. In both cases, Google is taking some else's work and using it in a way that was not originally intended, namely having it available for someone to find on the Web. In the Field case, the judge ruled that was OK under fair use.

"The fair use question is also at the heart of the library case," Wilcox said.

Nevertheless, the facts in the two cases are very different, so the impact from the latest decision would be small, Wilcox said.

Band expects writers and book publishers to argue that the Internet is different from the analog world, and laws governing the use of copyrighted material on the Web don't necessarily fit the latter. In the library project, for example, Google is not using computer systems to search for material, but is physically scanning books into its database.

The Association of American Publishers and the Authors Guild sued Google last year, challenging the project and arguing the company needs to have permission to copy protected works. Both cases are pending.

Under the library project, Google plans to digitize books from the collections of Stanford University, Harvard University, the University of Michigan, Oxford University and the New York Public Library. The latter two are making available only books in the public domain.

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