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.