After more than eight years of litigation, Judge Denny Chin today dismissed the Authors Guild’s lawsuit over Google’s library book scanning project. In his 30-page decision, Chin not only dismissed the case against Google, he delivered a ringing endorsement of Google’s scanning program, bolstered the concept of fair use, and leveled a rebuke to the Authors Guild.
“In my view, Google Books provides significant public benefits,” Chin wrote. “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.”
As to the Authors Guild’s claim that the scanning would “negatively impact the market for books” Chin held that assertion did not make sense. “To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.”
Google officials issued a statement saying they were "absolutely delighted" with the judgement. “As we have long said Google Books is in compliance with copyright law and acts like a card catalog for the digital age giving users the ability to find books to buy or borrow.”
Authors Guild executive director Paul Aiken told PW that the Authors Guild was “disappointed” by the court's decision, and plans to appeal. “This case presents a fundamental challenge to copyright that merits review by a higher court,” Aiken said. “Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”
In his final analysis, Chin took a very different view.
“[Google Books] has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books,” he wrote. “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."
After years of fair use legal wrangling, the case wasn’t even close. Chin found Google easily prevailed on three of the four fair use factors, and lost slightly on one.
As to the first factor, “the purpose and character of use,” Chin held that Google's scanning is “highly transformative.”
Google’s digitization “transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books,” the judge held, with its display of "snippets" akin to thumbnail images. In addition, the scans facilitate text and data mining, “thereby opening up new fields of research.”
Further, Google Books does not “supersede or supplant books,” but rather it “adds value to the original, and allows for the creation of new information, new aesthetics, new insights and understandings.”
Per the second factor, “the nature of the copyrighted work,” Chin noted that while fiction merits additional copyright considerations, 93% of the scanned works are nonfiction, which augured for fair use.
To the third factor, “amount and substantiality of the portion used,” the judge acknowledged that Google made multiple and complete copies. But “copying the entirety of a work may still be fair use,” he noted, and in this case, “full-work reproduction is critical” to offering full text search. Still even though “Google limits the amount of text it displays in response to a search,” Chin held that the third factor, on balance, weighed “slightly against a finding of fair use.”
The fourth factor, “effect of use upon the potential market or value,” weighed “strongly” in favor of Google, Chin held. He acknowledged that Google is “a for-profit entity and Google Books is largely a commercial enterprise.” But the mere fact that Google is a commercial entity was not enough to tip the balance.
“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,” he noted.
“Google does, of course, benefit commercially in the sense that users are drawn to the Google websites by the ability to search Google Books,” he conceded. But while that is “a consideration to be acknowledged,” even assuming Google's “principal motivation is profit,” the project also serves several important educational purposes.”
In terms of the library copies, which the Authors Guild had argued were an unlawful distribution, Chin acknowledged that the “partner libraries” do have the ability to download a scan of a book from their collections, but that “they owned the books already.”
Although the Authors Guild has said it would appeal, that appeal is complicated by the fact that the Second Circuit is now preparing to rule on a parallel case, the Authors Guild vs. HathiTrust. In that case, in which the Authors Guild sued a collective of Google’s library scanning partners, Judge Harold Baer delivered an emphatic summary judgment ruling against the guild—and in a hearing in late October, the Appeals Court seemed likely to affirm that ruling.
Chin’s decision comes after a long and winding legal road. The original suit, filed in September of 2005, was the first against Google over its scanning program. And after almost eight years of legal wrangling—including three years spent unsuccessfully stumping together for a controversial settlement—the case, barring an unforeseen reversal, now appears to be nearing the end of the road.
In October of 2012, publishers dropped their lawsuit against Google after a settlement.
Libraries Praise Ruling
Reaction to the decision from the library community was one of complete support. “ALA applauds the decision to dismiss the long running Google Books case,” said Barbara Stripling, president of the American Library Association. “This ruling furthers the purpose of copyright by recognizing that Google’s Book search is a transformative fair use that advances research and learning.”
“This decision, along with the decision by Judge Baer in Authors Guild v. HathiTrust, makes clear that fair use permits mass digitization of books for purposes that advance the arts and sciences, such as search, preservation and access for the print-disabled,” said Carol Pitts Diedrichs, president of the Association of Research Libraries.