Victory for Google Books, larger victory for the public

book scanning for Google Books

Book scanning at the University of Michigan, one of the libraries participating in Google Books

Have any of your Google searches turned up pages from a book?

Google began to experiment with scanning books in 2002 and announced plans to establish a digital library, now known as Google Books, in 2004.

The project quickly became mired in controversy as the Authors Guild, some individual authors, and several major publishers sued Google for copyright infringement.

The Court of Appeals for the Second Circuit recently upheld a 2013 district court ruling on Authors Guild v. Google that Google’s activities constitute fair use under copyright law. The Authors Guild plans to appeal to the Supreme Court.

Its executive director, Mary Rasenberger, said in a statement, “America owes its thriving literary culture to copyright protection. We are very disheartened that the court was unable to understand the grave impact that this decision, if left standing, could have on copyright incentives, and, ultimately, our literary heritage.”

Rasenberger’s statement shows that the Authors Guild does not recognize that America’s literary culture depends as much on the fair use doctrine as it does on the concept of copyright protection. The Guild represents only a small fraction of American authors, most of whom have much to gain from Google Books.

The American Library Association has long stood firm in its advocacy of fair use. The best possible outcome for fair use of the Guild’s appeal is for the Supreme Court to refuse to hear it. If the Supreme Court agrees to hear the case, it should uphold the lower courts’ decisions.

Google Books

Google Books display

Google Books search results, Partnership Program

Google Books began with two facets: the Partner Program and the Library Project. In both cases, Google scans entire books. The Library Project immediately stirred controversy.

In the Partner Program, Google entered a cooperative agreement with book publishers. When Google users enter a search query and find a link to a book covered by this program, a page displays that gives basic bibliographic information about it, links to places they can buy the book.

It also shows a few pages from the book: the page(s) that contain the search term and a one or two pages before and after. If the web page contains advertising, Google and the publisher share the revenue

In the Library Project, Google began to scan all the books in the collections of five major libraries. When a search retrieves a book in public domain, the viewer can read the entire book. When a search retrieves a Library Project book under copyright, it limits users’ views to no more than three instances of the search term, and only a few surrounding sentences.

That is, in the Library Project Google was not in partnership with publishers, and at first publishers had no way to opt out. Google sought to head off charges of copyright violation by providing only very limited “snippets” from the books.

It didn’t work. Google suspended scanning of copyrighted library books from August through October 2005 to accommodate objections from publishers, giving them time to decide among three choices:

  • Participate in the Partner Program
  • Allow Google to scan books and display snippets
  • Opt out of the Library Project, in which case, Google would not scan any of that publisher’s books.

That didn’t work, either. The Authors Guild, joined by some individual authors, sued Google on September 20, 2005 for copyright infringement. The suit asked for damages and injunctive relief.

On October 19, five major publishers launched their own suit, seeking only injunctive relief. Neither suit included a request for a restraining order. Neither suit named participating libraries as defendants.

The plaintiffs argued that scanning entire books without permission violated copyright laws, and that Google’s belated offer of an opt-out placed undue burden on copyright holders. They wanted the court to order an opt-in procedure and force Google to obtain permission before scanning.

Google, on the other hand, claimed that its actions came under the fair use doctrine. It had an important legal precedent in its favor. In Kelly v. Arriba Soft, Arriba had complied a database of images by using software spiders to retrieve images from websites. It displayed thumbnails to users, along with a link to the original site. Kelly, a photographer who found some of his work was in Arriba’s database, sued.

The district court, affirmed by the Court of Appeals for the Ninth Circuit, concluded that Arriba had not exploited Kelly’s pictures either to sell them for a profit or promote its own website. It also found that Kelly’s originals appeared among thousands of other images.

He intended his photographs to provide information and give the viewer an aesthetic experience. Arriba, on the other hand, transformed the images to thumbnails with the intention of indexing them. They were low resolution and could not be enlarged.

Finally, the court held that Arriba did not harm Kelly’s ability to make money from his images. Instead it drove traffic to Kelly’s site, where he could make money by selling or licensing his pictures to people who would not have found them except through Arriba. Therefore, Arriba’s actions came within fair use.

Google and the plaintiffs disagreed on the applicability of Kelly v. Arriba Soft. The plaintiffs also argued that the case had been wrongly decided. They urged the court to decide on the basis of a different precedent.

The decision in favor of Google by Court of Appeals for the Second Circuit echoes Kelly v. Arriba Soft. Judge Pierre N. Leval wrote, “The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

Fair use

fair use t-shirt

Electronic Frontier Foundation t-shirt advocating privacy, fair use, innovation, and free speech

Article I, Section 8(8) of the U.S. Constitution empowers Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Copyright protects creative works, including books and other written materials, audio or video recordings, art works, architectural designs, software code, and more.

To qualify, the work must be original and fixed in a tangible medium of expression.

A published book is a fixed form of an author’s creative work. During the period it is under copyright, no one else may publish or copy it.

Book sales depend in part on reviews, however, and a reviewer ought to be able to quote portions of a book without prior permission. A newspaper article ought to be able to quote from a scientific paper. In both cases, the public benefits and the copyright holder suffers no loss.

So copyright is not absolute. Exceptions, called fair use, are written into copyright law. Fair use is copying for some “transformative” purpose, such as commentary, criticism, or parody.

Copyright law describes fair use very broadly, which means that copyright holders and the people who use their work often disagree on what constitutes fair use. When controversies go to court, judges consider four factors:

  • the purpose and transformative character of the use
  • the nature of the work (for example, whether a piece of writing is fiction or non-fiction)
  • how much of the work is used
  • the effect of the use on the copyright holder’s ability to market the work

Kelly v. Arriba Soft and Authors Guild v. Google raised new fair use issues. The examples given earlier involve using portions of a printed work within another printed work, not transferring entire printed book to the Internet.

The public receives clear benefit from being able to find information from a book online. Google Books can’t harm the interests of authors and publishers. Search engine results allow users to see brief portions of a book that they may never have encountered otherwise. And therefore give them opportunity to purchase it.

Eventually explanations of fair use will have to find some term to add to criticism, commentary, and parody, because none of them describe the service that Google Books provides. Whatever legal scholars eventually call it, the public must not lose its ability to discover and use copyrighted books online.

Sources:
Google’s digital library wins Court of Appeals ruling / Alexandra Alter. New York Times (October 16, 2015).
The Google Library Project: both sides of the story / Jonathan Band. Plagiary (2006)
“Fair Use,” Copyright & Fair Use / Stanford University Libraries

Photo credits:
Book scanning. Some rights reserved by Ian McKellar
Google Books. Screen shot
T-shirt. Some rights reserved by Ian McKellar


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