Google Gets Total Victory Over Authors Guild: Book Scanning Is Fair Use

from the about-freaking-time dept

This one has been a long time coming, but this morning, Judge Denny Chin (who actually has a long history of siding with copyright holders) found that Google's book scanning project is fair use. This is a huge victory in a variety of ways. Five years ago, we thought that Google made a huge mistake in dropping its fair use fight here, in trying to work out a "settlement," which would have harmed fair use by suggesting these kinds of things needed to be licensed, while also setting up a near de facto monopoly on digitizing books. Thankfully, that settlement got rejected, and the fair use argument went back into the courts. Actually, Judge Chin first focused on whether or not this should be allowed as a class action, but in a somewhat surprising move, the appeals court basically ignored that issue entirely and told Judge Chin to answer the fair use question first.

He's now done so and it's a fantastic victory for fair use. The ruling relies on last year's ruling in the similar HathiTrust lawsuit, in which the Authors Guild sued a bunch of universities for banding together to scan books in their libraries. There, the court pointed out that this was clear fair use, and Chin finds the same here with Google. He runs through the well-known "four factors" test, noting that Google's work "is highly transformative," comparing it to other cases, that have said Google's image search efforts are similarly fair use. But he goes further, noting how valuable the end result of scanning these books and making them searchable really is.
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."
Chin also rejects the idea that it can't be fair use just because Google is a commercial enterprise, noting that there are lots of commercial enterprises that rely on fair use, and also pointing out that it's not engaging in "direct commercialization of the copyrighted works," but those works lead to indirect commercial benefit. That's not enough to remove fair use, especially when "the fact is that Google Books serves several important educational purposes."

Chin also points out that these book scans do not act as a market replacement for the books, and actually says that the very argument that it does doesn't make sense.
Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.
In fact, he points out:
To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.
It all comes together in making a very strong argument that Google's book scanning promotes the progress of the arts and sciences just like copyright is supposed to do.
In my view, Google Books provides significant public benefits. 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.
This is a huge win for the public, for science, for research and for most authors who will undoubtedly benefit from expanded search and discovery of their works. The Authors Guild, led by luddite Scott Turow, not only look completely out of touch, but they've wasted nearly a decade and a tremendous amount of their members' money on a completely wasted effort to impede the progress of science and knowledge. Isn't it time the Authors Guild had a boss who was forward-looking, rather than trying to pretend he can bring back the world that existed in the 1980s? Even worse, Turow famously is a practicing attorney, as well as a best-selling author. So it's not even like he can claim he was suckered into this by bad lawyers. He should have known better.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 11:09am

    Glad to hear the legacy author didn't succeed in limiting innovation, through litigation.

     

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

  2.  
    identicon
    Allanstrings, Nov 14th, 2013 @ 11:11am

    Flawless Victory!

    Hard to imagine a more complete and total win for the Fair Use Doctrine than this ruling.

    Someone should link Turow a Google Books search for 'got told' or 'burn treatment'...

     

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

  3. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 14th, 2013 @ 11:12am

    I LOVE GOOGLE!

     

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

  4. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 14th, 2013 @ 11:12am

    Yes, but only proves that Google is a growing monster.

    You will rue the day.

    So long as "The Market" (if not NSA directly) rewards Google for spying, do you expect it to do LESS of it?

    07:12:33[i-145-6]

     

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

  5.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 11:13am

    Scott Turow, demonstrates the problem with labelling copyright as intellectual property, it makes people think that they should be able to control all uses of their property.

     

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

  6.  
    identicon
    Allanstrings, Nov 14th, 2013 @ 11:14am

    Re: Flawless Victory!

    rofl... same time i posted this pops up in Insider chat:
    Christopher Best: *Flawless Victory*

    Great minds and all that...

     

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

  7. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 14th, 2013 @ 11:14am

    Re: return of fake out_of_the_blues -- These kids just LIE.

    The most influential, the most commented-at, the most mocked! And the only commenter honored in SONG!

    http://en.wikipedia.org/wiki/Out_of_the_Blue

    07:13:50[i-170-5]

     

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

  8.  
    identicon
    The Who, Nov 14th, 2013 @ 11:21am

    Re: Re: return of fake out_of_the_blues -- These kids just LIE.

    You're associating music with yourself now?

    Well, I'd have to say I'm much more famous than you are! It's an honor for a band to name itself after my illustrious self after all.

    Indeed, you're very commented at... influental though? Well maybe if you're using the same metrics as Prenda or Jack Thompson. This would explain much, if so many disabilities, disorders and plain stupidity didn't already encompass your behavior.

     

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

  9.  
    identicon
    S. T. Stone, Nov 14th, 2013 @ 11:22am

    Re: Yes, but only proves that Google is a growing monster.

    Hey, Blue, what’s the matter? Do you feel more pissed about Fair Use becoming stronger for everyone or the original intent of copyright ending up mentioned in a court of law?

     

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

  10.  
    identicon
    cpt kangarooski, Nov 14th, 2013 @ 11:27am

    Re: Yes, but only proves that Google is a growing monster.

    Just the opposite, actually. If it's fair use when Google does it, it's fair use when anyone else does it too. It would take a bit of time and money to put together a competing project that did the same thing, but you're free to do so. Google has no copyright, ha-ha, on scanning and searching books.

     

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

  11.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 11:29am

    ' Isn't it time the Authors Guild had a boss who was forward-looking, rather than trying to pretend he can bring back the world that existed in the 1980s'

    does this echo Hollywood and the entertainment industries, or what? this is exactly what those industries are doing! it's about time there were big changes made to them and i sure dont mean anything like those proposed under TPP. that is something that needs throwing out with the rest of the garbage, as do those that proposed it!

     

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

  12.  
    identicon
    Heidi, Nov 14th, 2013 @ 11:33am

    Fanworks

    The possible impact on other kinds of transformative works including fanworks will be massive. With the bulk of the court’s analysis focused on the first part of the Fair Use test - the “purpose and character of the use” - because fanfic and fanworks inherently present a new aesthetic, insight or understanding to the source work.
    I flashed back to a 2006 piece about YouTube today and was reminded that 15 years ago, Congress wanted the Internet - that series of tubes - to be treated like a bookstore. Every day, I am relieved and gladdened that they did not get their way.

     

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

  13.  
    icon
    RonKaminsky (profile), Nov 14th, 2013 @ 11:33am

    Well, bully for Judge Chin, _this_ time

    Well, well... I had been a bit apprehensive after the opinion he filed in the Aereo case, but can now breathe easier...

     

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

  14.  
    icon
    velox (profile), Nov 14th, 2013 @ 11:36am

    What about old books?

    Does this mean that Google can restore scans of old books that are clearly in the public domain, and which were formerly (but no longer) available on Google Books, or is that a completely separate issue pertaining to contracts Google made with universities when the scanning was done? Can anyone explain what's going on with books that are hundreds of years old?

     

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

  15.  
    identicon
    Kenneth Michaels, Nov 14th, 2013 @ 11:40am

    Intellectual Property or Intellectual Monopoly

    Agreed. In fact, nothing should be labeled "intellectual property" or even "intellectual monopoly." There is no such thing. We have copyright, patent rights, trade secrets, and trademarks. The term "intellectual property" was only ever intended as a convenient way to refer to those rights, but the term has been abused by propagandists to mislead people into thinking these rights are more than they are.

     

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

  16.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 11:45am

    8 years?

    I think the sad part here is that a lawsuit was brought in September 2005, and fair use was finally determined in November 2013.

    Eight years for a case where the facts are pretty much undisputed? Seriously? And now the Author's Guild are probably going to appeal this decision, and if they win the appeal, then the circuit court will have to rule on the class certification which they put off ruling on (unless they win the appeal in some way which demands the lower judge re-rule on fair use while considering one particular factor differently, and of course however he rules it will be appealed again) and then send it back to the lower court, and THEN do all the legal stuff you need to do for class action suits, and since neither Google nor the Author's Guild has a shortage of lawyers, it would probably get to trial around the year 2250. OK, maybe not THAT long, but long enough that a significant percentage of the authors involved would be dead.

    What's the point of being able to sue if it's going to be 8 years before even getting to the summary judgement phase? And likewise, what's the point of a fair use defense if you need to hire over 8 years' worth of lawyers to get that far?

     

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

  17.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 11:50am

    Callooh! Callay! Oh Frabjous Day!

     

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

  18.  
    icon
    Gwiz (profile), Nov 14th, 2013 @ 11:52am

    Re: Re: return of fake out_of_the_blues -- These kids just LIE.

    ex nihilo nihil fit

     

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

  19.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 11:55am

    (Google beheads AG)

    FLAWLESS VICTORY!

     

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

  20.  
    icon
    Zakida Paul (profile), Nov 14th, 2013 @ 12:01pm

    Good

    Hopefully now, we can apply this to schools and Universities.

     

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

  21.  
    icon
    jupiterkansas (profile), Nov 14th, 2013 @ 12:09pm

    Let's hope this is the last I ever hear of Scott Turrow and his Author's Guild.

     

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

  22.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 12:12pm

    Re: 8 years?

    What's the point of being able to sue if it's going to be 8 years before even getting to the summary judgement phase? And likewise, what's the point of a fair use defense if you need to hire over 8 years' worth of lawyers to get that far?

    Look at from the perspective of the public.

    We benefit quite a bit by not having gunslingers for Google and the Author's Guild shooting at each other (with real bullets!) as their feud plays out in the public streets, barrooms and back alleys.

    When both sides have the resources to keep a conflict running for 8+ years, start thinking about what else they could afford to buy for their fight:  Machine guns, hand-grenades?

    Much better for the public to have high-priced lawyers duelling it out where the bailiffs can keep the fisticuffs under control.

    That's a practical benefit.

     

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

  23.  
    icon
    John Fenderson (profile), Nov 14th, 2013 @ 12:29pm

    Re: Yes, but only proves that Google is a growing monster.

    This ruling weakens Google's ability to be a monopoly in this area by making it possible for entities without a huge bankroll for license fees and/or lawyers to participate in this space.

    I would think that you'd be the first one cheering this, Blue.

     

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

  24.  
    icon
    jameshogg (profile), Nov 14th, 2013 @ 12:48pm

    Why does it take so much to achieve the tiniest bit of common sense?

    Because people don't think "copyright" and "slippery slope" can be mentioned in the same sentence.

     

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

  25.  
    icon
    gorehound (profile), Nov 14th, 2013 @ 1:01pm

    Good Riddance Author's Guild !

     

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

  26.  
    icon
    jameshogg (profile), Nov 14th, 2013 @ 1:11pm

    Re: Yes, but only proves that Google is a growing monster.

    If you want to stop Google from being such a monster, and I would hope that you do, call for the abolition of copyright. They will have a real chance of losing both their monopolistic copyright strangleholds and monopolistic piracy strangleholds.

     

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

  27.  
    identicon
    Eadwacer, Nov 14th, 2013 @ 1:11pm

    Seems Fair

    I mean, all that Google's doing is providing metadata.

     

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

  28.  
    icon
    jupiterkansas (profile), Nov 14th, 2013 @ 1:45pm

    Scott Turow

    Hey, look everyone! Scott Turow's books are on Google Books!

     

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

  29.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 2:05pm

    Re: 8 years?

    ...it would probably get to trial around the year 2250. OK, maybe not THAT long, but long enough that a significant percentage of the authors involved would be dead.


    Scott Turow is currently 64 years old. Average life expectancy in the US is 78 years, so assume Turow will die around 2027. That means that the copyrights on his work will expire around 2097 (unless they extend the terms again). There are plenty of authors who are younger than Turow, so this case could still easily be relevant in 2120.

     

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

  30.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 3:06pm

    Re: Yes, but only proves that Google is a growing monster.

    YOU will rue this day.

     

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

  31.  
    icon
    RonKaminsky (profile), Nov 14th, 2013 @ 3:26pm

    I prefer: Creator's Usufruct

    I personally prefer the term "creator's usufruct", in that it emphasizes that what is being milked for income belongs to society, not the creator herself. (Besides which, "usufruct" has such a "woody" sound to it...)

    Of course, this inversion of rhetoric will probably never see wide use, since: (1) most content creators are too self-centered to adopt it, (2) most content gatekeepers are too savvy to allow language usage to undermine their current rhetorical advantage, and (3) usufruct isn't actually a universal legal concept, but rather a civil law concept.

    (Please don't take this post to mean that I support the current form or terms of these usufructs; this is about terminology, only...)

     

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

  32.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 5:14pm

    Re: Re: 8 years?

    Your position being that if legal fights didn't take so long everyone would shoot one another? What kind of logic is that?

     

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

  33.  
    identicon
    Anonymous Coward, Nov 14th, 2013 @ 5:14pm

    Re: Seems Fair

    A cargo cultist!

     

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

  34.  
    identicon
    Anonymous Coward, Nov 15th, 2013 @ 3:41am

    Re: Re: Re: 8 years?

    What kind of logic is that?

    “The life of the law is not logic, but experience.”

    Sometimes I think that the sole real, practical purpose of the legal system is to redirect the energies of the combatants away from the street —and away from innocent bystanders— and otherwise to grind both sides down, depleting them, until their resources are exhausted, and one side or the other ceases fire, and falls in surrender.

     

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

  35.  
    icon
    jupiterkansas (profile), Nov 15th, 2013 @ 8:49am

    Re: Re: Re: Re: 8 years?

    Gee, and I thought it was just a way to settle disputes.

     

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

  36.  
    icon
    John Fenderson (profile), Nov 15th, 2013 @ 10:57am

    Re: Re: Re: Re: Re: 8 years?

    I think you're both saying the same thing, really.

     

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

  37.  
    identicon
    Anonymous Coward, Nov 15th, 2013 @ 5:11pm

    out_of_the_blue just hates it when due process is enforced.

     

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

  38.  
    icon
    techflaws (profile), Nov 18th, 2013 @ 1:22am

    Re:

    Really? What about these implications for orphaned works?

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This