Book Scanning As Fair Use: Google Makes Its Case As Authors Guild Appeals Hathitrust Fair Use Ruling

from the make-the-case dept

Two new developments in the two big cases concerning book scanning and fair use: first up, we've got the somewhat unsurprising news that the Authors Guild is appealing its rather massive loss against Hathitrust, the organization that was set up to scan books from a bunch of university library collections. As you may recall, Judge Harold Baer's ruling discussed how the book scanning in that case was obviously fair use. It was a near complete smackdown for the Authors Guild.

The appeal will cover a few different issues beyond just fair use, such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question. It would seem that the Authors Guild has an uphill battle.

Meanwhile, in a closely related case, involving the Authors Guild suing Google over its book scanning efforts, Google has filed its appeal brief in response to an earlier ruling, which said that the Authors Guild can represent authors and has standing to sue. Google is arguing that its offering is also a clear case of fair use, as in the Hathitrust case. This is something we thought Google should have pressed strongly from early on.
Google Books is a revolutionary search technology for books—a modern and marked improvement over the traditional card catalog. Google has scanned and indexed more than 20 million books by agreement with major research libraries. The Google Books tool allows any user to enter a search query, obtain a list of books containing the user’s search terms, and view limited “snippets” of surrounding words showing how the terms are used. Google Books does not allow users to read a book online, or even a single page of a book, without express permission from the rightsholder. But its search capabilities help users find books to buy or borrow, connecting them with the books they need, and thus bringing to light a wealth of information previously hidden, undiscoverable, in books sitting on library shelves. Google Books thus offers enormous benefits to authors and readers and to the progress and diffusion of human knowledge.
It also argues that the Authors Guild cannot represent the class of authors in the case, since many authors are helped by Google Books and don't agree with the Authors Guild that it's somehow evil. As a result of that (and how copyright law works) Google also points out that the fair use determination may need to be on a book by book basis, rather than as a whole:
Despite the individual issues at the heart of Plaintiffs’ suit—and unrebutted evidence that a significant portion of the proposed class in fact approves, and benefits from, Google Books’ uses—the district court certified a plaintiff class under Federal Rule of Civil Procedure 23(b)(3) consisting of “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project.” SPA2. That decision was error, for several reasons. First, Plaintiffs cannot adequately represent, as required by Rule 23(a), the large number of class members who would be harmed if Plaintiffs prevail—that is, the many class members who benefit economically and in other ways from the Google Books project and do not want to see it curtailed.
Not surprisingly, the argument here is compelling. Even if you don't buy the fair use argument, it's difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all. No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 15th, 2012 @ 6:12pm

    It's difficult to see how Google has any "fair use" rights,

    since it doesn't own any of the books in question. Google is (yet again) taking what it hasn't paid for and monetizing it under pretense of "helping" the public. That's my answer to:
    "... such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question."

    Next: "... difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all." -- Nah. Under that notion, EVERY member of a "class" would have to join an action or it couldn't move at all. Provisions can be made for those wishing to opt out. And just because Google is bribing / buffaloing some members of the class doesn't mean that a still "significant" number aren't on the other side.

    "No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss." -- I'm not so sure. 3 hours and it's only me giving you a charity comment, besides that we manifestly have no points in common.




    Mike "Streisand Effect" Masnick sez my every post is "great!"
    http://en.wikipedia.org/wiki/Streisand_effect

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Nov 15th, 2012 @ 7:10pm

    Re: It's difficult to see how Google has any "fair use" rights,

    *brain explodes*

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 1:42am

    Re: It's difficult to see how Google has any "fair use" rights,

    I really don't understand how you can write out several paragraphs in response to every article here but still not make any sense. I mean you throw so much s*** at the wall, something should've stuck by now...

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 4:21am

    Re: It's difficult to see how Google has any "fair use" rights,

    'since it doesn't own any of the books in question'

    Hahahaha! They are being leant the books by the owners, they aren't going in to shops and stealing them to scan you idiot.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 5:51am

    Re: It's difficult to see how Google has any "fair use" rights,

    The pretense of helping the public? What pretense? There's an objectively observable public good in indexing this content. Just like there is for indexing web pages. Although I'm sure you're enough of a loon to question the pubic good of indexing web pages as if you were making some salient point.

    Google doesn't need to own books to have fair use rights. If I lend my copy of a book to a blind man and they use a braille machine to create a copy so they can read the book I lent them that would obviously be a fair use. It's not a fair use right, it's a fair use exception to copyright. It's a limit on the application of copyright.

    How is 'Google doesn't have fair use right' an answer to 'the Author's Guild itself doesn't hold any of the copyrights' by the way? The two things have absolutely nothing to do with one another.

    Google is asking for provisions to be made for those wishing to opt out. Provisions like not assuming they're in a class a priori. Wild, ludicrous conspiracy theories about bribery and intimidation not withstanding. The onus is on the party claiming class status to show that they're a relatively uniform class. But they're not.

     

    reply to this | link to this | view in thread ]


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