If the Authors Guild prevails in its legal battle over Google’s library book scanning program the search giant could theoretically be on the hook for over $1 billion in damages. According to the Authors Guild motion for summary judgment, filed on July 27 (but made public in a redacted version on August 3), the Guild asks the court for summary judgment in its favor, and the minimum statutory damage award—$750 per infringement. With as many as four million of the estimated 20 million books scanned by Google thought to still be under U.S. copyright, the damages could run into the hundreds of millions of dollars should Google lose, depending on the ultimate size of the class, and assuming that copyright holders come forward and prove ownership.
The Guild brief portrays the Google program as little more than a commercial effort to gain “a competitive edge over its rivals in the search engine market” by scanning the contents of printed books. But Google’s “unauthorized uses fall far outside the parameters of section 107’s fair use doctrine,” the Guild argues. “Google’s unauthorized uses are for a commercial purpose; involve verbatim copying, distribution and display of protected expression; are not transformative, and if they become widespread would adversely affect actual and potential markets for copyrighted books.”
In its July 27 motion for summary judgment, Google asserted that its scanning program easily meets the standard of fair use, arguing that full-text scanning is necessary to achieve full text indexing, and that the index offers significant benefits to the public as well as to authors with no evidence of any harm to authors. The next round of filings, each side’s reply to the summary judgment motions, is due August 24, with final replies due September 17, and oral arguments on the cross motions set for October 9.
A Commercial Enterprise
From the beginning, Google has portrayed the scanning program as a public good. But, in its brief, the Authors Guild portrays the scanning effort as a purely commercial venture designed to give it an advantage over competitors like Microsoft and Amazon, which had both launched book scanning projects that asked permission of the copyright owner. The brief cites internal Google documents citing Google’s desire to cement an advantage over its rivals, and notes that Google has invested nearly $180 million in the scanning program. It also notes that Google was making progress with its partner program, signing up publishers for its corpus, when it decided to scan library books.
Specifically, the Guild argues that Google’s unprecedented scanning program, falls far outside of Congress’ stated intentions regarding copyright policy. “Despite Google’s arguments to the contrary,” the brief states, “its mass digitization project does not become fair use because it is a) allegedly difficult to locate copyright owners and obtain permission from them for Google’s uses and/or (b) Google Books benefits libraries. Google cannot “arrogate to itself the right to determine whether or not it is in the public interest, or the interest of copyright owners for it to indiscriminately digitally reproduce and distribute millions of copyrighted works without the permission of the owners of those copyrights.”
The Guild argues forcefully that Google should not be permitted to usurp Congress’s role—that Congress via section 106 of the Copyright Act (which vests copyright owners with the exclusive right to reproduce their work), or section 108, (which governs library preservation) has plainly drawn limits on copying. “Google’s argument that it, a commercial entity, should be permitted under Section 107’s fair use provision to engage in unauthorized mass digitization, distribution and displays that Congress has not even permitted to not-for-profit libraries has no merit,” the brief argues.
On the fair use analysis, the Guild argues that the four-factor test does not favor Google. On the first factor (the purpose and character of the work), the brief argues that Google’s use is purely commercial in nature, and not transformative, because the company is not engaged in accepted fair uses such as criticism, comment, news reporting, teaching, scholarship, and research. “Google’s conduct is far removed from the usual fair use case,” the brief states.
As with Google's brief, the second factor, (the nature of the copyrighted works) is not centrally relevant. Both sides acknowledge that Google has scanned all types of works, however, the Guild argues that this factor either tilts toward them, or is neutral.
The third factor (the amount of the work used) the AG argues tilts strongly in their favor—after all, as Google admits, they are copying entire works, and storing the works on servers to return search results. While Google argues that the standard is to use no more of the work than is needed, and that Google needs to scan the entire work to make the entire work searchable, the Guild counters that over time, Google will eventually “display most of the verbatim expression from the books to its users collectively.”
On the fourth factor, (market impact) the Guild argues that the facts strongly favor them. “Google's verbatim reproduction of the books for itself and its library partners and its distribution of entire digital copies to libraries clearly supersedes the original, serving as a market replacement for them,” the brief states. “Because Google digitally copies entire print books supplied by libraries, Google does not purchase or license the books from the copyright owners for the purpose of using them in its search engine. Because Google distributes entire digital copies to libraries, those libraries do not purchase or license such digital copies from the copyright owners. When Google displays verbatim expression from books on its search engine without permission, it deprives copyright owners of a license fee for this digital use, from which Google is profiting. Google’s actions therefore deprive copyright owners of revenues for uses of their books.”
In addition, the Guild argues that Google’s actions affect the future market for authors. “If Google’s uses are found to be fair,” the brief states, “this will legitimize widespread digital copying without permission, thereby impeding the development of collective licenses for digital uses of books and excerpts of books from search engines, libraries, and others.”
On the question of the library copy, the Guild hits back at Google’s claim that it does not distribute copies to libraries, noting that Google’s actions of placing a book on server where a library can then make its copy is essentially a distribution. The Guild portrays the library copy as a “quid pro quo” paid to libraries for allowing Google to scan its collections. To date, the AG states, Google has given libraries 2.7 million digital copies of copyrighted works.
The Guild also argues that the books are at risk being held on Google and library servers, and that an attack in which the corpus is hacked could have grave consequences for copyright owners.
Unfair?
Whether or not the Guild brief makes the case that Google’s copying is not a fair use, it has easily cleared the first hurdle: effectively demonstrating to the court that the project is at the very least unprecedented in copyright history. And they demonstrate that Google is hardly altruistic in nature, but a commercial, for-profit enterprise. The question now is how those factors will be balanced with Google Books’ clear benefits and harms—a point on which the court has wide discretion, and which could dramatically affect the future of fair use, however the verdict falls.
“In determining whether Google’s uses are fair,” the Guild brief states, “the full scope of Google’s Library Project must be considered. Congress expressly intended the fair use doctrine to be adapted to the facts of each particular case and had ‘no disposition to freeze’ the doctrine, ‘especially during a period of rapid technological change.’”
