Google Books' Scanning of Copyrighted Work Indeed Legal, Appeals Court Confirms

Likely outcome: better for scholars, readers, writers, even publishers.


I reported back in 2013 on Google Books pioneering court victory against the Authors Guild over its practice of scanning and putting online parts of copyrighted books. 

Today the federal 2nd Circuit Court of Appeals agreed, as reported in the Wall Street Journal:

Here's the bottom line from Second Circuit Judge Pierre Leval, who wrote the opinion:

In sum, we conclude that: (1) Google's unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google's commercial nature and profit motivation do not justify denial of fair use. (2) Google's provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement.

Google stood to lose billions of dollars if it lost the case. Under copyright law, the minimum damages for infringement is $750 per work. The company has insisted it's in compliance with copyright law, describing Google Books as a card catalog for the digital age.

The Authors Guild announced its intention to take this all the way to the Supreme Court.

The logic of the original pro-Google decision from Judge Denny Chin:

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….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…

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…..

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…….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…Indeed, all society benefits.

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  1. Cue Old Mexican in three, two, one….

  2. The whole second section of the original judges reasoning seems completely irrelevant to me. Copyright isn’t the right to make a profit, it’s the right to deny others profit or the ability to use your work. The fact that what Google is doing is good for the book writers has nothing to do with if they are violating copyright or not.

    1. It is relevant to the Fair Use exemption to Copyright.

      The court ruled that copying, indexing, and serving up snippet of copyright protect books is Fair Use.

      This is an important ruling.

  3. Melvil Dewey can rest soundly.

  4. It has always astonished me how the publishers and authors could work so hard against their own best interests. It would be different if they thought Google was publishing their copyrighted books, but even the simplest investigation would have shown otherwise. It was the opposite: Google was widening the audience and providing far better access, for free.

    I can only conclude that copyright is not about profits, but about control. Maybe Disney was bankrolling the entire fiasco in order to keep Mickey safe from all potential threats, no matter how far-fetched and unlikely.

    1. It’s funny that the most important character in the history of IP law might be a cartoon mouse.

    2. It has always astonished me how the publishers and authors could work so hard against their own best interests

      If you polled members of the guild, I wonder how many of them would be for this lawsuit and how many against. I also wonder how many actually understand what Google is doing well enough to make an informed decision.

  5. If only we could just do away with these illiberal IP laws all together the world would be a better place.

  6. When does the IP-libertarian-philosophy pissing contest start?

    *looks impatiently at watch*

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