Back in 2005, I wrote that Google Print "may single-handedly keep the copyright-related blog world in business for the next few years." Eight years later, the Southen District of New York decisively granted Google's motion for summary judgment that the book scanning project is fair use. The Authors Guild v. Google (SDNY, Nov. 14, 2013)
The book search does not provide a competitive substitute for the actual book:
"An 'attacker' who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages."
1. The Purpose and Character of the Use
Google use of the scanned books' text to create a search index and display search result snippets is "highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books."
While books are used to convey information, Google uses the text differently:
"Google Books thus uses words for a different purpose -- it uses snippets of text to act as pointers directing users 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 -- the frequency of words and trends in their usage provide substantive information.
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." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
Even though Google is a commercial enterprise, it isn't using the book scans in a commercial manner: "Here, 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."
Thus, the first factor "strongly favors" a finding of fair use.
Would the outcome here be different is Google ran ads against book content and searches? If it sold books through its own book store?
2. The Nature of Copyrighted Works
Books are the paradigmatic protectable copyrighted works -- after all, copyright wouldn't exist but for books. But works of fiction are entitled to greater protection than non-fiction books. Most of the books scanned by Google are non-fiction. Further, the scanned books are published and available to the public, which favors a finding of fair use.
3. Amount and Substantiality of the Portion Used
Google does scan the entirety of the works. However, full-text copying is required in order to be able to index and search the books. "Significantly, Google limits the amount of text it displays in in response to a search." Because Google scans the entire works, the third factor weighs slightly against a finding of fair use.
4. Effect of Use Upon Potential Market or Value
Google's book search does not replace or compete with actual books.
"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.
To the contrary, a reasonable factfinder 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."
The fourth factor weighs strongly in favor of a finding of fair use.
Finally, Judge Chin rules, "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."
This is a decisive ruling that scanning book content for indexing, searching, and educational purposes is fair use.
Discussion and Commentary
Evan Brown, Information Law Group, What the Google Book Search Fair Use Decision Means For Innovators: "Google’s use of technology in this situation was disruptive. It challenged the expectation of copyright holders, who used copyright law to challenge that disruption. It bears noting that in the court’s analysis, it assumed that copyright infringement had taken place. But since fair use is an affirmative defense, it considered whether Google had carried its burden of showing that the circumstances warranted a finding that the use was fair. In this sense, fair use serves as a backstop against copyright ownership extremism. Under these particular circumstances — where Google demonstrated incredible innovation — that backstop provided room for the innovation to take root and grow. Technological innovators should be encouraged."
Matthew Sag, Google Books held to be fair use: "Unless today’s decision is overruled by the Second Circuit or the Supreme Court — something I personally think is very unlikely –, it is now absolutely clear that technical acts of reproduction that facilitate purely non-expressive uses of copyrighted works such as books, manuscripts and webpages do not infringe United States copyright law. This means that copy-reliant technologies including plagiarism detection software, caching, search engines and data mining more generally now stand on solid legal ground in the United States. Copyright law in the majority of other nations does not provide the same kind of flexibility for new technology."
Ali Sternburg, DisCo Project, Google Books Opinion is a Win for Fair Use and Permissionless Innovation: "One key takeaway from this case is validating that companies can invest resources into creating tools that benefit the public without seeking permission from gatekeepers, if their efforts are transformative, which can involve copying and digitizing entire works."
Joe Mullin, Ars Technica, Google Books ruled legal in massive win for fair use "In the long term, the failure to settle may result in more scanning, not less. If Chin's ruling stands on appeal, a clean fair-use ruling will make it easier for competitors to start businesses or projects based on scanning books—including companies that don't have the resources, legal or otherwise, that Google has."
Timothy B. Lee, The Washington Post, Google Books ruling is a huge victory for online innovation "If the ruling is upheld on appeal, it will represent a significant triumph for Google. More important, it would expand fair use rights, benefiting many other technology companies. Many innovative media technologies involve aggregating or indexing copyrighted content. Today's ruling is the clearest statement yet that such projects fall on the right side of the fair use line."
Adam L. Penenberg, The Google Books decision is good for authors and readers "Although the two litigants were the Authors Guild and Google, and the guild vows to appeal the decision, it doesn’t represent my views. I’m glad it lost. I don’t agree that Google robs authors of income, because the vast majority of us don’t make a cent off our books in the years after they are published. If Google is willing to take on the task of scanning each book and making them searchable, then setting up a way for people to be able to buy them right there and then, it should also get a cut of the action."
Will Oremus, Slate, Google Books Ruling a Win for Fair Use ... and Rich Tech Companies: "The trick, it seems, is to steal so aggressively and profit so much that by the time the lawsuits hit, you’re rich enough to fend them off."
David Kravets, Wired, Google’s Book-Scanning Is Fair Use, Judge Rules in Landmark Copyright Case "Google’s massive book-scanning project that makes complete copies of books without an author’s permission is perfectly legal under U.S. copyright law, a federal judge ruled today, deciding an 8-year-old legal battle."