Google wins over Authors Guild
Google Books has won the latest round in its seemingly never-ending copyright-fair use battle with the Authors Guild over digitization of books for use online.
In a decision handed down Friday, the United States Court of Appeals for the Second Circuit affirmed the 2013 decision of a federal trial court that every aspect of Google’s book copying — including putting snippet views of copyright-protected works online without the permission of the copyright owners — constitutes a fair use under American law.1
The dispute between Google and the Authors Guild is one that the court itself said “tests the boundaries of fair use”:
Through its Library Project and its Google Books project, acting without permission of rights holders, Google has made digital copies of tens of millions of books, including Plaintiffs’, that were submitted to it for that purpose by major libraries. Google has scanned the digital copies and established a publicly available search function. An Internet user can use this function to search without charge to determine whether the book contains a specified word or term and also see “snippets” of text containing the searched-for terms. In addition, Google has allowed the participating libraries to download and retain digital copies of the books they submit, under agreements which commit the libraries not to use their digital copies in violation of the copyright laws. These activities of Google are alleged to constitute infringement of Plaintiffs’ copyrights.2
The specific arguments of the Authors Guild were that:
(1) Google’s digital copying of entire books, allowing users through the snippet function to read portions, is not a “transformative use” within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), and provides a substitute for Plaintiffs’ works; (2) notwithstanding that Google provides public access to the search and snippet functions without charge and without advertising, its ultimate commercial profit motivation and its derivation of revenue from its dominance of the world-wide Internet search market to which the books project contributes, preclude a finding of fair use; (3) even if Google’s copying and revelations of text do not infringe plaintiffs’ books, they infringe Plaintiffs’ derivative rights in search functions, depriving Plaintiffs of revenues or other benefits they would gain from licensed search markets; (4) Google’s storage of digital copies exposes Plaint iffs to the risk that hackers will make their books freely (or cheaply) available on the Internet, destroying the value of their copyrights; and (5) Google’s distribution of digital copies to participant libraries is not a transformative use, and it subjects Plaintiffs to the risk of loss of copyright revenues through access allowed by libraries.3
And the bottom line from the appeals court: “We reject these arguments and conclude that the district court correctly sustained Google’s fair use defense.”4
Now… some history.
The Authors Guild began its case 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.5
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 violation,6 plus costs and attorneys’ fees.7 Google had estimated that, if it lost the suit, it could face billions of dollars in damage awards.8
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.9
But after years of wrangling over the settlement in the courts, the whole proposal was shot down by the trial judge in 2011. U.S. District Judge Denny Chin said the settlement did not meet the legal standards required for settlement.10
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.11 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 in July 2013 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.12 And his opinion, issued in November 2013, was a complete win for Google.13
That’s the decision the Court of Appeals has now affirmed.
The appeals court judges unanimously ruled that:
Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer.14
Much of the decision was no surprise, since the digitization-for-search-purposes issue had already been decided by the same Court of Appeals in the case the Authors Guild brought against Hathitrust.15 The one key thing that hadn’t been decided in the earlier case was whether Google could show snippets of any book that turned up in the search. And even on this issue, the Court sided with Google:
Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appear s in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest. For example, a searcher seeking books that explore Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will nonetheless conclude she can skip that book if the snippets reveal that the book speaks of “Einstein” because that is the name of the author’s cat. In contrast, the snippet will tell the searcher that this is a book she needs to obtain if the snippet shows that the author is engaging with Einstein’s theories.
Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whethe r the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher.16
So… we’re genealogists. Why do we care about this stuff?
We care for two reasons — and just as copyright law runs into conceptual problems because it tries to balance the interests of the public in having new works by protecting the interests of the creators of those new works, our two reasons can run head-on into each other and cause us problems too.
On one hand, as researchers, it’s terrific that we can 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 dozen books I’ve bought in the last year or two 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, on the other hand, 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, what is shown may be too much for our very specialized field.17
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 and genealogical book authors will have to find a way to adapt or perish.
But every one that perishes is a loss to our community.
SOURCES
- The Authors Guild et al. v. Google, Inc., No. 13-4829-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 16 October 2015, online at court website (http://www.ca2.uscourts.gov/ : accessed 18 Oct 2015). ↩
- Ibid. at 1-2. ↩
- Ibid. at 2-3. ↩
- Ibid. at 3. ↩
- 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 19 Oct 2015). ↩
- See 17 U.S.C. § 504(c). ↩
- See 17 U.S.C. § 505. ↩
- See Larry Neumeister, “Google Books Lawsuit: Authors Guild Demands $3 Billion,” Huffington Post, posted 8 May 2013 (http://www.huffingtonpost.com : accessed 19 Oct 2015). ↩
- See “$125 Million Settlement in Authors Guild v. Google,” The Authors Guild (http://www.authorsguild.org/ : accessed 19 Oct 2015). ↩
- 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 19 Oct 2015). ↩
- 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 19 Oct 2015). ↩
- 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 19 Oct 2015). ↩
- 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 19 Oct 2015). ↩
- The Authors Guild et al. v. Google, Inc., 2d Cir. slip op. at 4. ↩
- Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97-98 (2d Cir. 2014). ↩
- The Authors Guild et al. v. Google, Inc., 2d Cir. slip op. at 23. ↩
- See generally Craig R. Scott, “A Publisher’s Point of View,” in “Keeping the lights on,” The Legal Genealogist, posted 8 Mar 2013 (https://www.legalgenealogist.com/blog : accessed 19 Oct 2015). ↩
I totally agree Judy. Our field is specialized and many will find the 2 lines that pertain to their ancestor and be on their merry way, with no purchase. For me, that’s not how I would do it, because I am looking for context and for additional people. But I really worry about our favorite genealogical publishers. Not sure how they will “adapt” when THIS way of adapting has already been chosen for them. My guess is that methodology and overviews will remain publishable and list-oriented materials will go in another direction.
Thanks for clarifying the decision today.
I have had no problem with Google since I self publish. BUT, I did have a huge problem with FamilySearch.com. My books are ordered by many of the major libraries including Dallas, Fort Wayne, etc. A friend called me about a year ago and said “do you know all your books are on-line – in total?” I went to the site and there is listed about 100 of my 500 books and yes, they were totally shown, copyright and all. I finally found a live person and asked what was going on! He said they had copied these books (and thousands of others) at various libraries and were making them available for others. When I cited the copyright infringement, there was some hemming and hawing ending with my demanding that they ALL be removed within 24 hours or I would bring suit against them. They got all the links broken; now they just list the title and nothing more. This is my entire income as a retiree and I have worked since 1990 in gathering this data. It is NOT fair or right.
Some works — regardless of the amount of time and effort spent gathering data — are not protected from copying, even if the person who prepares them claims copyright. A census list or set of census lists, a tax list or set of tax lists, might very well fall under the not-sufficiently-original rule of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
I agree with you on your reply. However, many of the books they copied were family books – my family and others. This is where my complaint came from; it did include compilations on marriages, funeral home records, obituaries, etc. etc. But there are certain of my books that should be protected by my copyright surely!
Thanks for your comments!
Absolutely on those, Sandi: no question whatsoever that your work product in that respect should have been completely protected.
I, too, am concerned by this ruling. Although I’ve seen small articles here and there throughout the life of the lawsuit, though, there have never been enough details published to allow me to form what I consider an informed opinion (yes, I apply the Genealogical Proof Standard here!).
I’m more worried about the full copies being made available to the libraries than I am about the snippets being available online. My optimistic view is that anyone who would buy the book looking for a single fact is going to require more than just the snippet. He or she will also want to see the citations, if nothing else. Or, if there are no direct citations (for presumably valid reasons), then the proof argument will be needed. Someone who isn’t looking for that level of detail probably would not have ponied up for the entire book in the first place.
The appeals court addressed the concern about the libraries’ use of the copy made available to them, Dave, and concluded that if there is a violation it will be the fault of the library involved, not of the digitizer. And I think that’s the right call on that issue.
It’s time to go fishing cause the court just opened a can of worms. Lets jump to the music industry. There is no infringement if I just use a snippet of an artists works to run in one of my commercials. Think I will use a snippet of Enya’s “Waterfall”. Wait, maybe a snippet from a just released movie. I can tell you right now, its gonna make some people real snappy!
You’re not using it for the kind of purposes that the court approved there, Stan: you’re not helping people find music (the way the court said Google was helping people find content in books). You’re using the music to sell your product. Not allowed. But I’d bet if someone put up a website with snippets of music (think the samples in iTunes, for example), it might pass muster.
Judy is spot on about this. I know of at least one example of how snippets of commercial songs (through Spotify or through direct links to the artist’s music videos) are used to sell full versions through a major music site:
http://www.billboard.com/charts/hot-100
If these snippets are legal for commercial songs, then it is hard to argue against the legality of snippets for books.
Now that is interesting…
Google changed their behaviour during the case. At the beginning, most of most books were available to view. The ruling seems to have effectively found that behaviour was not acceptable. But in the past year or two, Google reined in the size of extracts visible – to “snippets”.
Furthermore they have excluded illustrations, (including maps and charts), some of which were formerly visible
This is a win for authors of academic works on history and social history.
However, as your previous correspondent mentioned, authors of genealogical works may have lost out in this judgement. Especially when years of working through many sources (at some expense) lead to a breakthrough conclusion that is expressed in a few sentences that can be quickly found online and copied.
That is the concern: that just enough is disclosed that the authors no longer bother to write and publishers no longer bother to publish.
I’m not sure I buy the danger to small publishers. Certainly, it is possible to see snippets that give a useful piece of data – if the snippet shows elements of a list, for instance. If it’s general text, I’m dubious – I don’t think I’ve ever seen a snippet that included “a few sentences”. Usually they stop at a cliff-hanger and I fail totally to guess the next words and thus see the next, adjacent snippet.
If it is a list, and I do see all that I need – I don’t think that’s necessarily a lost sale. I seriously am not going to buy a book of lists on the off chance one of my relatives might be in it. Even if I know the topic is probably relevant, coverage of these books is seldom 100% of a defined population – in other words, there’s a major chance they won’t be in. So I’ll go to a library and look the book up there, not buy it.
I don’t know how compelling the risk is… just that there is some risk.
It is unfortunate that the trial court did not see fit to allow the negotiated settlement of Google and the Authors Guild to go forward in 2011. That settlement would have provided a framework for solving the problem of orphan works. This decision only allows the status quo to continue.
The orphan works question really needs Congressional action — from a Congress that works. Which means it ain’t gonna happen any time soon.
Dearest Judy – I’m no expert here. I’m just obsessed with my family tree. I know I don’t see the whole picture, but I really do fail to see the difference between finding the info via Google search and and finding it in a Library (which is where it came from). If I find it in the book in the library, I simply copy it down and take it home. If I find it via Google search, I copy it, and put it in my notes/tree without leaving my home. The ONLY difference I see is that the library purchased the book, Google didn’t but they “borrowed” it from the library. The author would loose no benefit ’cause I’m not gonna buy it anyway. What am I missing?
In your case, you’re missing nothing. What the publisher wants to protect is the potential that some folks might not be like you but might actually buy the book.