Litigator of the Week: Daralyn Durie of Durie Tangri
For the last seven years, Daralyn Durie and her colleagues at Durie Tangri have been defending Google Inc.'s ambitious plan to digitize millions of books and create a searchable online database of their contents. Her perseverance paid off on Nov. 14, in the form of a groundbreaking ruling from Judge Denny Chin, sitting by designation in U.S. district court in Manhattan. After keeping the publishing world on pins and needles for years, Chin ruled that Google's unauthorized copying constitutes "fair use" of authors' copyrighted material.
"Google Books does not supersede or supplant books because it is not a tool to be used to read books," Chin wrote. "It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life."
Chin's decision has been widely praised by research librarians. Beginning a decade ago, many libraries allowed Google to digitize their book collections even though the company didn't obtain authors' permission. The president of the American Library Association said in a statement that the ruling "furthers the purpose of copyright by recognizing that Google's Book search is a transformative fair use that advances research and learning."
Chin's ruling almost didn't happen. The lead plaintiffs—a nonprofit called the Authors Guild and a group of publishers—agreed to a complex $125 million settlement in October 2008. But Chin rejected the settlement in March 2011, ruling that certain concessions extracted by Google "would arguably give Google control over the search market" for books.
"The hearing on that settlement was probably the most interesting oral argument I've ever had," Durie said. "There was an overflow room to the overflow room."
For Durie and for Google, Chin's latest ruling more than makes up for the early setback. "There aren't many decisions that talk about how fair use works in a digital context," Durie said. "As a lawyer, you do what your client wants. But you always hope you'll be able to argue the case on the merits. That's the fun part."
The Authors Guild has already appealed the Nov. 14 decision to the U.S. Court of Appeals for the Second Circuit, where Chin now sits. The case will be assigned to Judges Pierre Leval, Jose Cabranes and Barrington Daniels Parker Jr. In July 2013 the same panel ordered Chin to address the fair use question before the class certification stage, writing that "resolution of Google's fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues."
That ruling bodes well for Google's second trip to the appeals court. It's hard to believe the court rearranged the order of the case if it found Google's fair use argument lacking. As law professor James Grimmelmann put it: "The court decided to gently signal what it thought about the fair use question and invite Judge Chin to cut to the chase."
For now, Durie is savoring the moment and responding to congratulatory emails. "It's wonderful to not only win a case, but to also do something you can feel really good about," she said. "It wasn't two parties fighting about money—which is a lot of what we do."