Google Can Go Ahead And Keep Scanning Copyrighted Books, It's Fair Use, Says Court


Capping off a lawsuit running since 2005, the U.S. District Court for the Southern District of New York today granted summary judgment to Google  to end the case of Authors Guild v. Google.

Choice excerpt from the decision:

by helping readers and researchers identify books, Google Books benefits authors and publishers. When a user clicks on a search result and is directed to an "About the Book" page, the page will offer links to sellers of the book and/or libraries listing the book as part of their collections…..The About the Book page for Ball Four [whose author is one of the parties suing Google Books], for example,provides links to, Barnes&, Books-A-Million, and IndieBound….

A user could simply click on any of these links to be directed to a website where she could purchase the book. Hence, Google Books will generate new audiences and create new sources of income. As amici observe: "Thanks to . . . [Google Books], librarians can identify and efficiently sift through possible research sources, amateur historians have access to a wealth of previously obscure material, and everyday readers and researchers can find books that were once buried in research library archives."

The full decision in Author's Guild v. Google as a whole gives a pretty good mini history of Google's book scanning projects and a good defense of its many uses to literary and scholarly achievements and culture. But the legal nub of why Judge Denny Chin decided the authors can go pound sand and Google triumphs is:

I assume that plaintiffs have established a prima facie case of copyright infringement against Google…Google has digitally reproduced millions of copyrighted books, including the individual plaintiffs' books, maintaining copies for itself on its servers and backup tapes…..Google has made digital copies available for its Library Project partners to download…..Google has displayed snippets from the books to the public….Google has done all of this, with respect to in-copyright books in the Library Project, without license or permission from the copyright owners. The sole issue now before the Court is whether Google's use of the copyrighted works is "fair use" under the copyright laws. For the reasons set forth below, I conclude that it is.

The Judge then breaks down the four factors usually considered in "fair use" determinations and finds Google wins. (This excerpt doesn't deal with all four points):

The use of book text to facilitate search through the display of snippets is transformative….to a broad selection of books. Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text….Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings."…

Google does not sell the scans it has made of books for Google Books; it does not sell the snippets that it displays; and it does not run ads on the About the Book pages that contain snippets. It does not engage in the direct commercialization of copyrighted works…Accordingly, I conclude that the first factor [basically, is the use transformative?] strongly favors a finding of fair use.

And the Judge thinks Google Books isn't hurting the book sales business:

plaintiffs argue that Google Books will negatively impact the market for books and that Google's scans will serve as a "market replacement" for books…..It also argues that users could put in multiple searches,varying slightly the search terms, to access an entire book….Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion….

a reasonable fact finder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered -- whether potential readers learn of its existence….Google Books provides a way for authors' works to become noticed, much like traditional in-store book displays….Indeed, both librarians and their patrons use Google Books to identify books to purchase…..Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences. Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales…..

Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. 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. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

It's a court decision so there are lots of interesting complications in the whole thing, but that's the jist. Google Books as it stands can keep on truckin' without compensating authors.

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  1. Huzza!

    Now, if we could just get rid of copyright laws altogether...

    1. Is this HuffPo? Anti-property?!

    2. Huh? That is a terrible idea. If there's anything a government should do it is to protect property rights.

      1. Lots of libertarians are anti-intellectual property rights. They see it as restricting the free use of one's mind and body to use and create. There's something to be said for this position. There's also something to be said for the fact that ALL property places limits on what other people can do.

  2. Huh.

    One part of my brain says, "I should probably care about this a great deal, and endeavour to learn more about it." The larger part says, "Who gives a shit. BOOBS!!!"

    Sometimes I hate my brain. OTOH, I love boobs, so...

    1. Liking boobs proves you can focus on two things at once.

  3. I maintain that copyright should benefit the creator, for his own lifetime and no longer than that.

    After he or she dies, it's fair game.

    Heirs and other parties, get your own shit.

    1. I maintain there should be no copyright, as everyone else has to work every day; do tailors get royalties every time somebody puts on one of their suits each day, or car makers get a royalty every time you turn the key, or architects get a royalty every time someone enters the lobby?

      1. They don't even get royalties when someone designs a suit, car, or building which looks just like or has the same features as one of theirs

      2. Suits, cars, and architecture would be covered by patent law, and in the case of patents, you generally get 20 years from the time the application was filed.

    2. I haven't really entirely made up my mind about IP, but I certainly agree that copyrights should definitely not extend beyond the author's lifetime.
      Though since corporate entities can also own copyrights, I think a simple fixed term is probably the way to go.

      I have a friend who is Norman Rockwell's grandson and his job is selling the rights to reproduce his paintings and illustrations for the benefit of the family trust, or whatever it is. Which just seems absurd.

      1. Let's go ahead and say 20 years. Make it like a patent. The authors will bitch that many of them won't make any money during that 20 years. So what? Neither do most patent holders.

    3. So all your cash and land and vehicles should be fair game when you die too? Either it's property or it isn't.

      1. Personal property =/= real property =/= intellectual property.

        Different rules govern each because they are distinguishable.

        1. This is an interesting issue for me. You can go ahead and say that intellectual property exists only because of government say-so. That is, intellectual property wouldn't be protected without government intervention. How is that any different between normal property? The only reason we feel any security in our property is because we know that there are mechanisms to protect it - those are government-provided.

  4. Several issues.

    NY Judges are notoriously corrupt, so one must take anything they say with a grain of salt.

    Copyright of longer than a decade or two encourages rent seeking on franchises rather than the creation of new content.

    Long copyright has driven most books from the middle of the 20th century out of print, because the holders want to focus on more profitable new releases, and those who are willing, can't do so at the cost imposed by licensing the works. It is easier to find 1850s works than 1950s works in print.

    I don't like google, they turned evil.

    I'm a bit skeeved at the thought of my books ending up on google's site for their profit without my knowledge or concent. I'm also equally perturbed that the 'author's guild' thinks it can speak for me.

    Fair use isn't actually written into law, it's a construct of the courts, so the boundaries are ill-defined.

    1. I have about 2 dozen lovely hardcover books at home (many hundreds of dollars worth of books) that I never would of heard off without Google Book Search.

      The author's guild are truly idiots.

    2. "Fair use isn't actually written into law, it's a construct of the courts, so the boundaries are ill-defined."

      The actual law would have to disagree with you there:

      1. SHHHHH...

        Though, admittedly, its statutory boundaries are somewhat ill-defined... which is a problem with all laws trying to predict future conduct. And why we have courts...

  5. One of my major New York publishers indeed believed as a matter of policy that fair use did not exist: they insisted on explicit permission for every quote from a previously published bit of writing. Had one of my other publishers insisted on that, the book itself would have been impossible.

  6. IP should be fully abolished; end it don't mend it.

    1. That's...communist. But ok.

  7. So I've got it:

    If you copy one book, you're a criminal.

    If you copy all the books, you're doing a public service.

  8. I always think of Intellectual Property Rights in reference to pharmaceutical drug formulas, as well as technological breakthroughs that cost hundreds of thousands up to millions or billions of dollars.

    In cases like these, and perhaps all IP cases, we should allow the copyright holder to hold the exclusive rights to the product until their clear, proven cost of research has been met with the profit from the sales of the product.

    Then the product is fair game for the free market. So, we maintain a semblance of fairness, while simultaneously forcing competition sooner than would otherwise happen.

    I mean, I don't like the idea, but I'm an anarchist, so i guess my opinion doesn't count.

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