Limits on Copyright through Google Books: The Need for an International Fair Use

Alex Sanchez

Imagine having access to an online catalog of all the books, in all the languages, in the world.  That was Google’s purpose when it started its Google Books Library Project.[i]  In order to do so, the technological corporation reached several agreements with institutional libraries, private authors, and publishers to digitalize every book they had and they would get a digital copy in return.[ii]

Once the digitalization was done, Google would upload it to its database and users of the search engine could look for terms in the books.  However, Google did not display the complete book, unless it was in the public domain.  Generally, the users of Google Books could only see three brief snippets of the books, in order for them to decide whether the book contained the information that they were looking for.

The Google Books Library Project was not very popular amongst some publishers and copyright owners around the world, who thought that Google had violated their copyrights.  Therefore, they decided to sue Google for copyright infringement.[iii]

            The case in the United States was decided through the application of the fair use doctrine.  Fair use is an affirmative defense that allows the reasonable use of someone’s work, without their authorization to do so.[iv]

            The fair use doctrine was codified in Section 107 of the Copyright Act of 1976.  The first part of this section recognizes some favored purposes of fair use:  “[C]riticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”[v]  The second part, establishes four factors that courts will have to use while analyzing a fair use allegation:  “The purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes”, “the nature of the copyrighted work”, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”, and “the effect of the use upon the potential market for or value of the copyrighted work.”[vi]

            The United States Court of Appeals for the Second Circuit concluded, after weighting every factor, that fair use protected Google Books.  It held that Google’s use of the works had a highly transformative purpose, because its function was to allow the searcher to locate some information, not to just display the complete book.[vii]  In addition, Google’s commercial motivation was irrelevant, because its service was not a significant substantive competition to the original works.[viii]  Moreover, snippets showed small portions of the books, which could “not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.”[ix]

            However, in France the result was very different.[x]  France does not have a fair use defense.  French copyright law only has a closed list of exceptions to executive rights.[xi]  If someone in France uses a copyrighted work without the owner’s consent, and his conduct is not in any of the listed exceptions, he or she will be liable for copyright infringement.

            The Tribunal de Grande Instance de Paris held that the short citations exception did not protect Google’s use of copyrighted books because it did not consider that it complied with the requirement of information.[xii]

Current international copyright law does not recognize fair use as a defense to copyright infringement.  Quite to the contrary, the fair use defense in the United States does not comply with the requirements of article 9 of the Berne Convention.[xiii]  However, fair use is an extremely useful tool in a society with constant technological changes. Therefore, the international community should adopt the fair use defense to avoid situations such as the Google Books case.[xiv]

[i].                Google BooksGoogle Books Library Project – an Enhanced Card Catalog of the World's Books, https://books.google.com/googlebooks/library/index.html (last visited July 22, 2017).
[ii].               Lyombe Eko et al., To Google or Not to Google:  The Google Digital Books Initiative and the Exceptionalist Intellectual Property Law Regimes of the United States and France, 15 No. 7 J. Internet L. 12, 14 (2012).
[iii].              Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), cert. denied, 136 S. Ct. 1658 (2016); see also Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Paris, Dec. 18, 2009, Rg 09/00540 (Fr.).
[iv].               See Pub. Affairs Assocs. Inc. v. Rickover, 268 F. Supp. 444, 450 (D.D.C. 1967).
[v].                17 U.S.C. § 107 (2012).
[vi].               Id.
[vii].              Authors Guild, 804 F.3d at 216.
[viii].             Id. at 219.
[ix].               Id. at 224.
[x].                See Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Paris, Dec. 18, 2009, Rg 09/00540 (Fr.).
[xi].               See Eric J. Schwartz, An Overview of the International Treatment of Exceptions, 57 J. Copyright Soc'y U.S.A. 473, 476 (2010).
[xii].              Tribunal de Grande Instance Paris, Dec. 18, 2009, RG 09/00540 at 16.
[xiii].             Sam Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, at 68–69, WIPO Doc. SCCR/9/7 (Apr. 5 2003), http://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.pdf.
[xiv].             See Schwartz, supra note 11, at 496.

Beauty Without Pain?: Testing on Animals in the United States and United Kingdom

Tanja Vucetic

Every day, millions of cosmetics and personal care products such as makeup, shampoos, deodorants, and moisturizers are used by millions of people.[i]  In fact, the cosmetic/beauty industry  garnered over sixty-two billion dollars in 2016 in the United States alone.[ii]  Before these products can enter the market stream, they are tested to ensure their safety.  Most of the time, the testing is done on animals.[iii]  In the United States alone, more than one hundred million animals are used for a variety of testing each year,[iv] and between one hundred thousand and two hundred thousand just for cosmetics.[v]  Animals such as mice, rats, hamsters, frogs, and even dogs are used in drug, chemical, and cosmetic testing as well as medical training labs and highschool biology classes.[vi]   However, all the testing comes at a cost in the form of the animal lives that are sacrificed for human health and benefit.  When testing cosmetics, animals are forced to endure experiments such as

skin and eye irritation tests where chemicals are rubbed onto the shaved skin or dripped into the eyes of rabbits; repeated oral force-feeding studies lasting weeks or months to look for signs of general illness or specific health hazards, . . . and ‘lethal dose’ tests in which animals are forced to swallow massive amounts of a test chemical to determine the dose that causes death.[vii]

Tests like these subject thousands of animals to excruciating pain without any relief and cause symptoms such as “blindness, swollen eyes, sore bleeding skin, internal bleeding, organ damage, birth defects, convulsions, and death.”[viii]  The animals that do survive are most often killed at the end of the test.

            There is some federal protection for animals used in testing. Congress enacted The Laboratory Animal Welfare Act of 1966, which later became known simply as the Animal Welfare Act (“AWA”).  From the time of its enactment until today, the AWA is the first and only federal law of its kind.  However, it is often misunderstood that the AWA prohibits animal testing.  Rather, the AWA sets the minimum standards for care and treatment that must be provided to certain animals that are bred or bought for commercial sale, to be used in research, or to be exhibited to the public.  While revolutionary for its time and still currently the only federal law of its kind, the AWA has failed to be effective because it excludes ninety five percent of the animals that are most commonly used:  mice, rats, birds, fish, reptiles, and amphibians.  This is the only federal law of its kind, and there are no federal laws regarding animal testing for cosmetics. However, California, New Jersey, and New York have each exacted laws that prohibit testing on animals for cosmetics.

            However, the U.K. has taken an a far stricter approach.  The U.K. has entirely banned testing on animals for cosmetics.  In fact, the U.K. has some of the strictest laws in the world.  In 1986, Parliament enacted the Animals (Scientific Procedures) Act 1986, which regulated the use of animals in experiments and testing.[ix]  In 2004, the EU issued a directive that prohibited testing finished cosmetic products on animals.  Since 2009, animal testing for ingredients has been banned as well as marketing any “cosmetic products containing ingredients which have been tested on animals.”[x]  For ingredients or products that required more complexity, the ban was extended to March 11, 2013.[xi]  Since then, no cosmetic products have been allowed to be marketed or sold in the U.K. if the finished product or any ingredient therein was tested on animals.
                                               
[i].               See MarketResearch.com:  The U.S. Beauty and Cosmetics Market Expected to Exceed $62 Billion in 2016Cision: News (Jan. 26, 2016), http://www.prnewswire.com/news-releases/marketresearchcom-the-us-beauty-and-cosmetics-market-expected-to-exceed-62-billion-in-2016-300209081.html#.
[ii].              Id.
[iii].             See discussion infra Part II, Section A.
[iv].             Experiments on Animals:  OverviewPeople Ethical Treatment Animals, https://www.peta.org/issues/animals-used-for-experimentation/animals-used-experimentation-factsheets/animal-experiments-overview/ (last visited July 12, 2017).
[v].               About Cosmetics Animal TestingHumane Soc’y Int’l, http://www.hsi.org/issues/becrueltyfree/facts/about_cosmetics_animal_testing.html?referrer (last visited July 25, 2017).
[vi].             Experiments on Animals:  Overviewsupra note 4.
[vii].            See About Cosmetics Animal Testingsupra note 5.
[viii].           Id.

From Mandatory to Discretionary: Florida's McGrill Decision on Non-Violent Offenses Should be Used as the Beacon of Change on the Nation's and Florida's Fight on the War on Drugs and its Sentencing Policies

Deborah Ductant

           “And still I see no changes; can't a brother get a little peace?  It's war on the streets and a war in the Middle East.  Instead of war on poverty,[t]hey got a war on drugs so the police can bother me.”[i]  Tupac Shakur was onto something when he wrote these lyrics, that there needs to be changes and one of those changes is the war on drugs sentencing policies.[ii]  Florida needs to change its sentencing policies in regards to non-violent drug offenders, and the fifth district court of appeals’ decision in McGrill v. State may be the beacon of change that the state needs.[iii]  This note discusses the War on Drugs on both the federal and state level, and proposes a reform where Florida allows the court to have full discretion when the court is imposing a sentencing for non-violent drug offenders, just as the court ruled in McGrill.[iv]  Most sentencing laws were passed as a result of the war on drugs.[v]

The war on drugs, after its 1971 declaration by President Nixon, have seen a vast array of policies that have changed the way the United States have handled drug offenders, especially non-violent drug offenders.[vi]  The federal policies introduced mandatory minimums, which placed constraints on the court’s ability to apply a sentence that is unique to every individual defendant and tailored to every unique case.[vii]  Florida’s battle with drug abuse was by far one of the worst in the nation, and in response to this battle Florida’s legislators created harsh drug policies, which included in it even harsher penalties.[viii]  Individuals that have committed non-violent offenses represent forty percent of Florida’s prison population and about twenty percent of that forty percent in prison is in prison for drug offenses.[ix]  Florida’s primary sentencing guide is controlled by the Criminal Punishment Code (“CPC”), which mandates the court to impose a sentence term for any defendant that has a total of forty-four points.[x]  The goal of CPC scoresheet is to provide punishment and uniformity.[xi]  However, if Florida courts are allowed to navigate away from the CPC scoresheet for non-violent drug offenders and broaden the scope of offenders that can be allowed to be sentenced to any of the alternative sentences that Florida has to offer, there will be a drastic change in the amount of money spent on prisons as well as the prison population.[xii]  The state of Florida needs to correct its wrongs in terms of its sentencing of non-violent offenders and this note proposes a change that Florida needs to begin with and allow the McGrill decision to be the beacon of change.[xiii]


[i]           Tupac Shakur, Greatest Hits (1998).
[ii]           Id.
[iii]          82 So. 3d 130 (Fla. 4th Dist. Ct. App. 2012).
[iv]          Id. at 133.
[v]              Hon. Pattie B. Saris, A Generational Shift for Federal Drug Sentences, 52 Am. Crim. L. Rev. 1, 9 (2015).
[vi]          Thomas C. RoweFederal Narcotics Laws and the War on Drugs: Money Down a Rat Hole 87 (2006).
[vii]         Hon. Pattie B. Saris, A Generational Shift for Federal Drug Sentences, 52 Am. Crim. L. Rev. 1, 6 (2015).
[viii]        Lauren Galik, The High Cost of Incarceration in Florida: Recommendation for ReformReason Found. 1, 1 (April 2015), reason.org/files/florida_prison_reform.pdf
[ix]             Lauren Krisai, Smart on Sentencing:  Safety Valve for Florida’s Drug Trafficking OffensesThe James Madison Institute 1 (June 30, 2016), http://reason.org/files/florida_mandatory_minimums_safety_valves.pdf.
[x]              Fla. Stat. § 921.002(3) (2017).
[xi]           Id.
[xii]            Intermediate Sanctions for Non-violent Offenders Could Produce SavingsOffice of Program Policy Analysis & Government Accountability 2 (March 2010), www.oppaga.state.fl.us/monitordocs/reports/pdf/1027rpt.pdf.

[xiii]         Id.