Google Books scores fair use knockout

Google wins over Authors Guild

Google Books won a complete victory in federal court yesterday with a ruling that its digitization of more than 20 million books — and counting — is a fair use under the United States copyright laws.

GoogleUnited States Circuit Judge Denny Chin ruled that every aspect of Google’s book copying — including putting snippet views of copyright-protected works online without the permission of the copyright owners — constituted a fair use. As a result, he entered summary judgment in Google’s favor, dismissing the suit by the Author’s Guild.1

The judge — who began as the trial judge when suit was filed more than eight years ago and who has continued to rule on the case even though he is now an appeals court court — concluded that the benefits of the Google digitization efforts were “significant”:

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.2

He also ruled that Google’s copying of books for libraries was allowable as well:

Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law. The libraries then use these digital copies in transformative ways. They create their own full-text searchable indices of books, maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways. Google’s actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.3

The decision was a stunning reversal of fortunes for the Authors Guild, which had filed suit against Google back in 2005, arguing that the online giant’s efforts to scan books for online use was a violation of the copyrights of the authors. And the Guild brought the suit as what’s called a class action.4

The complaint alleged that Google was infringing the authors’ copyrights by scanning books and by making snippets available online if the books were still under copyright protection. It sought statutory damages — which can run as high as $150,000 per violation5, plus costs and attorneys’ fees.6 Google had estimated that, if it lost the suit, it could face billions of dollars in damage awards.7

In 2008, the two sides seemed to have reached a compromise that would settle the case with a payment of $125 million and the creation of a system where authors would share in future profits from the digitization project.8

But after years of wrangling over the settlement in the courts, the whole proposal was shot down by Judge Chin in 2011, who said the settlement did not meet the legal standards required for settlement.9

At that point, Judge Chin went on to decide that the Authors Guild and several individual authors could proceed with the case as a class action.10 That meant that the Authors Guild was allowed to act on behalf of every author affected by Google’s digitization, whether the author wanted to sue Google or not.

But the United States Court of Appeals for the Second Circuit decided back in July that letting the case go forward as a class action made no sense when the real issue was whether Google’s digitization efforts qualified as a fair use under the copyright laws. So it threw out the class action decision and sent the case back to Chin to decide the fair use claim.11

And that’s what Google won yesterday — and it won everything it could have won.

Judge Chin ruled that the key factor in deciding whether the copying was fair use was whether Google’s digitization was transformative — whether it superseded or supplanted the original or whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. And on that point Google won it all:

Google’s use of the copyrighted works 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. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative. … The display of snippets of text for search is similar to the display of thumbnail images of photographs for search or small images of concert posters for reference to past events, as the snippets help users locate books and determine whether they may be of interest. 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.”12

The case isn’t over yet, of course. The Author’s Guild will certainly appeal, and has already said it intends to do so.13 However, this is now the second decision that’s gone against the Authors Guild14 and the chances of reversal aren’t all that high.

So… what does this mean for us, as genealogists?

Two things.

First, it means we keep the access we now have to search out and find new sources from digitized works — even copyright-protected works — online. In many respects, it makes it far simpler for us to locate derivative works relating to our families. I can think of a half dozen books I’ve bought in the last year simply because I could find snippets on Google Books that demonstrated the overall value of the books for work I was doing.

And that’s a good thing.

But, second, it may very well be the last straw for some small publishers of specialized genealogical works. Despite the fact that Google’s snippet view doesn’t let anyone read an entire copyrighted work online — only three-eights of any one page can be seen at one time, one-eighth of each page will never be shown online, and one of of each 10 pages will never be shown online — what is shown may be too much for our very specialized field.15

The problem is that, for many researchers, it’s one single fact contained in the book that’s at the heart of the value of the book. It’s that one fact we might buy the book to find. A marriage date. A will location. A maiden name. Once we get that one fact, there’s no reason for us to buy the book as a whole.

Without people buying books, exactly how are the specialty publishers going to stay in business? And without specialty publishers, how are new works of value to genealogists going to get published? And if new works of value to genealogists don’t get published, where are we?

It may be that this problem is an inevitable side effect of the digital age, and that — like newspapers and magazines and a host of other publishers — genealogical book publishers will have to find a way to adapt or perish.

But every one that perishes is a loss to our community.

And that is, at least, a troubling and unsettling thing.


SOURCES

  1. Opinion, 14 Nov 2013, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at the website of the Southern District of New York (http://www.nysd.uscourts.gov/ : accessed 14 Nov 2013).
  2. Ibid., slip opinion at 26.
  3. Ibid., slip opinion at 26-27.
  4. See Complaint, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 14 Nov 2013).
  5. See 17 U.S.C. § 504(c).
  6. See 17 U.S.C. § 505.
  7. See Larry Neumeister, “Google Books Lawsuit: Authors Guild Demands $3 Billion,” Huffington Post, posted 8 May 2013 (http://www.huffingtonpost.com : accessed 14 Nov 2013).
  8. See “$125 Million Settlement in Authors Guild v. Google,” The Authors Guild (http://www.authorsguild.org/ : accessed 14 Nov 2013).
  9. See opinion, 22 March 2011, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Copyright.gov (http://www.copyright.gov/ : accessed 14 Nov 2013).
  10. See opinion, 1 June 2012, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 14 Nov 2013).
  11. The Authors Guild et al. v. Google, Inc., No. 12-3200-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 1 July 2013, online at court website (http://www.ca2.uscourts.gov/ : accessed 14 Nov 2013).
  12. Opinion, 14 Nov 2013, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, PDF at 20-21, online at the website of the Southern District of New York (http://www.nysd.uscourts.gov/ : accessed 14 Nov 2013).
  13. Round One to Google: Judge Chin Finds Mass Book Digitization a Fair Use. Guild Plans Appeal.” The Authors Guild Blog, posted 14 November 2013 (http://www.authorsguild.org/blog/ : accessed 14 Nov 2013).
  14. See also Judy G. Russell, “Big win for HathiTrust,” The Legal Genealogist, posted 12 Oct 2012 (http://www.legalgenealogist.com/blog : accessed 14 Nov 2013).
  15. See generally Craig R. Scott, “A Publisher’s Point of View,” in “Keeping the lights on,” The Legal Genealogist, posted 8 Mar 2013 (http://www.legalgenealogist.com/blog : accessed 14 Nov 2013).
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7 Responses to Google Books scores fair use knockout

  1. Robert Kirk says:

    “…the United States Court of Appeals… threw out the class action decision and sent the case back to Chin to decide the fair use claim…”

    The Circuit reverses one of its own members. I wonder if that makes the annual Circuit Christmas party a little chilly? :-)

  2. Christopher Schuetz says:

    Speciality publishing may already need to change. Why not follow what some musicians and artists are already doing and publish electronically? As a writer of family books on a couple of lines, I have two major problems: keeping costs down and finding distant cousins who would like to read them. Thus far I have avoided too many colour plates and only run off enough copies for close family. But I will need to change.
    Apart from needing to learn new skills, I can see some difficulties. Some creators of images allow them to be used gratis for tiny family runs, but charge heavily for electronic media. How do people and libraries store such media for the longer term?
    At least there is the possibility that, once created, Google might help with making the work known!

    • Judy G. Russell says:

      Specialty publishers are already making their work available online, Christopher, but the difficulties you mention — plus the expectation that electronic publishing should be so much cheaper — are real roadblocks.

  3. Dave says:

    The specifics disturb me. Let’s see — one page in ten won’t be shown, one-eight of each other page won’t be shown. That means 7/8 of 90% of the book, or 78.75%, can be shown online. That goes far beyond my concept of fair use!

    I’m not sure about the distinction between “transformative” and “derivative,” either. Derivative works are solely the province of the copyright holder, but I’m not sure (and haven’t looked up) exactly what a transformative work is in the first place and how it’s different within the context of copyright laws.

    I think it’s time to revisit the copyright laws in their entirety. Lifetime of the author plus 70 (or 100) years is NOT limited duration in my mind, and I also think out-of-print books should be fair game (the laws are not meant to protect collectors, the only ones who benefit by gaining from out-of-print materials — publishers, of course, benefit by removing expenses, which is different).

    • Judy G. Russell says:

      The concept of transformative work originated in a law review article by Judge Pierre Leval. It’s generally defined the way the court used the term here: “whether the new work merely ‘supersedes’ or ‘supplants’ the original creation, or whether it ‘instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’”

  4. Michael says:

    The “one single fact is the value of the book” applies to other types of books, like cookbooks, that are already excluded from snippet view. So if the genealogy publishers are not already excluded there, they could probably work with Google on that.

    I really did not see this decision coming. If it stands on appeal it could have huge implications for other types of information retrieval research in the USA like music, art, television, and movies. I wonder how far the Authors Guild will appeal if they keep losing; will they stop short of the Supreme Court to avoid a national precedent? Perhaps influenced by groups like the RIAA and MPAA?

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