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.

Filed Under: , , , ,
Companies: authors guild, google

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Google Gets Total Victory Over Authors Guild: Book Scanning Is Fair Use”

Subscribe: RSS Leave a comment
The Who says:

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.

cpt kangarooski says:

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.

Kenneth Michaels (profile) says:

Re: 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.

RonKaminsky (profile) says:

Re: Re: 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…)

Anonymous Coward says:

‘ 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!

Heidi (profile) says:


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.

velox (profile) says:

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?

Anonymous Coward says:

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?

Anonymous Coward says:

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.

Anonymous Coward says:

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.

Anonymous Coward says:

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.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...