WILLIAM J. O’BRIEN
APPLYING THE FAIR USE DOCTRINE TO PROTECT TECHNOLOGICAL INNOVATIONS: LESSONS FROM THE GOOGLE BOOKS CASE
The Supreme Court’s recent denial of certiorari in the Google Books case is important, but not surprising. The Authors Guild’s petition for certiorari was emphatic – even overblown – but it failed to back up the Guild’s contention that the Second Circuit (together with the Fourth and Ninth Circuit) had "turn[ed] the fair-use doctrine on its head."1 The Guild’s assertion of a "stark" split between federal judicial circuits was also unpersuasive.2 While there has been some semantic quibbling between circuits and some debatable outcomes on particular sets of facts, the thrust of the fair-use doctrine has been consistent for decades – and arguably even for centuries. While its application may seem to have dramatically expanded, that is primarily a result of technological change rather than a change in doctrinal direction. And the Guild failed to identify a compelling rule to constrain such expansion.