It’s a good day for fair use and sane copyright law. After years of litigation, Judge Denny Chin has ruled that the Google Books project does not infringe copyright. Readers, authors, librarians and future fair users can rejoice.
For years, Google has been cooperating with libraries to digitize books and create massive, publicly available and searchable books database. Users can search the database, which includes millions of works for keywords. Results include titles, page numbers, and small snippets of text. It has become an extraordinarily valuable tool for librarians, scholars, and amateur researchers of all kinds. As the court noted (citing an amicus brief EFF filed jointly with several library associations) librarians use the service for a variety of research purposes. Many librarians reported that they have purchased new books for their collections after discovering them through Google Books. Nonetheless, the Authors Guild argues that its members are owed compensation in exchange for their books being digitized and included in the database – even though blocking Google Book Search's digitization wouldn't bring any author any additional revenue.
The court made short shrift of the Authors Guild’s arguments on each of the four statutory fair use factors (the purpose of the use, the nature of the original work, the amount used, and the existence of market harm). With respect to whether the purpose of the use (i.e., whether it was transformative and/or noncommercial), the judge properly focused on the project as a whole. The Authors Guild hoped the court would focus on the intermediate copying – Google did, of course, make exact digital copies of entire books in order to include them in the database. As the court recognized however, Google’s purpose was to transform “expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.”
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." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
The court noted that Google is a commercial entity and derived some commercial benefit from the project, but gave that benefit little weight in light of the educational purposes of the project.
With respect to the nature of the work, the court acknowledged that many of the works were fictional (copyright protection tends to be stronger where works are highly creative) but the majority of the works in question were nonfiction and already published.
The court took a puzzling detour in finding that the third fair use factor weighed “slightly” against Google, because Google copied entire works. As the court acknowledged, copying an entire work can be fair if the entire work is necessary to the transformative use. It was surely necessary here, so this factor should have favored Google.
But the court’s ruling got right back on track with the fourth factor, market harm. The Authors Guild argued that Google's scans would some how serve as a "market replacement" for books, even insisting that users could use multiple searches for snippets to ultimately access an entire book. The court didn’t buy it:
Neither suggestion makes 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.
To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered -- whether potential readers learn of its existence . . . Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences. Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.
Taken as a whole, the ruling is remarkable. Not so much for its conclusions – we’ve believed from the get-go that the Google Books was a lawful fair use. Instead, what’s really refreshing about the ruling is its common sense analysis and its recognition of the key purpose of fair use: to make sure copyright serves, and does not impede, the public interest.
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.
Well said, Judge Chin. Let’s hope other courts take heed.
The Authors Guild has already declared that it will appeal the ruling. Its membership might want to consider whether they really want to spend more of their dues on this misguided litigation.