Meera Nair

Google Books – another fair use illustration

In Case Reviews on November 16, 2013 at 10:34 pm

No doubt, readers have already taken in the good news: on 14 November 2013, the Google Books Project was deemed fair use by Judge Denny Chin of the Southern District of New York. Hailed as a stunning victory for libraries and their patrons, the visually disabled, and continued high-tech innovation, the details almost seem mundane – of course displaying snippets of a work is not a violation of copyright. That the law should uphold common sense seems only appropriate.

Yet this was a story that began with an uncertain ending. At its outset in 2004, the actions of Google struck many as audacious. The Google Books project necessarily involved scanning entire books. While there was always an argument for legitimate fair use – library books were scanned with permission from libraries, the majority of books were out of print, only snippets would be displayed, Google did not engage in any direct profiteering from its action, etc. – the dialogue of copyright did not yet embrace nuanced examinations of copying with open consideration of public benefit. To some, once a copy is made without permission, the copyright owner’s rights have been infringed and heads should roll.

If the Author’s Guild had successfully shutdown Google Books at the start, the public benefits of the project would never have seen the light of day. And it was those benefits that Judge Chin emphasized in his decision, even before providing the analysis of fair use. Paraphrasing some of the key elements from his list (starting on page 9): 

  • “Google Books provides a new and efficient way for readers and researchers to find books. … It provides a searchable index linking each word in any book to all books in which that word appears.” Chin emphasizes that Google Books has become an essential research tool and part of our information society landscape.
  •  “Google Books greatly promotes a type of research referred to as ‘data mining’ or ‘text mining.’” Chin pays particular attention to the brief prepared by Matthew L. Jockers, Matthew Sag and Jason Schultz on behalf of Digital Humanities and Law Scholars, and extolls the merits of the newer form of scholarship.
  • “Google Books expands access to books.” Chin draws attention to the “traditionally underserved populations,” and points out that not only are the books themselves more easily found but that “digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities.” He also champions the “remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans.”
  •  “Google Books helps to preserve books and give them new life.” Chin is clearly aware that older, and potentially out-of-print, books are falling apart. Scans will at least preserve the content.
  •  And, quite apart from merit of the project with respect to reading, research, under-served populations and preservation, “Google Books benefits authors and publishers.” With any selection of a snippet, users are easily connected to sellers of the books thereby increasing the potential for sales.

Of course, Chin does not omit the examination of fair use; he performs the analysis with ease and clarity.  Before, and after, he reminds us that the listed four factors need not be the only consideration in questions of fair use. He emphasizes that they are only a general guidance and that there might be other considerations. Although, for the purposes of this case, he only needed the traditional four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

While fair use analysis allows for consideration of any purpose and character, American case law has long emphasized that transformative uses are fair. Chin has no difficulty assessing Google’s Book Project as transformative. “Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books (p.19).” Pointing to past successful arguments of fair use in the use of thumbnail images, Chin writes: “The display of snippets of text for search is similar to the display of thumbnail images … [to] help users locate books and determine whether they may be of interest (p.20).” And, with recourse to a fair use standard-bearer, the work of Judge Pierre Laval, Chin concludes the first factor by saying, “[Google Books] adds value to the original … [through] the creation of new information, new aesthetics, new insights and understandings (p.21).”

[Chin refuses to let the mere word “commercial” misdirect the claim of fair use. He points out that Google does not engage in direct commercial behaviour in connection to the snippets of text or the scans. “Even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes (p.22).”]

(2) the nature of the copyrighted work

With the majority of the scanned holdings being published books, the availability of the snippets for the public is only an asset to the claim of the fair use.  Drawing from past case law, Chin writes: “Whether or not a work is published is critical to its nature under factor two because the scope of fair use is narrower with respect to unpublished works (p.23).”

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

Chin begins with the reminder that the copying of entire works can be considered fair use. He then easily explains why Google’s entire copies are necessary and, happily enough, would never be available to serve as a substitute for the original:  “… as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search (p.23).”

(4) the effect of the use upon the potential market for or value of the copyrighted work

To the complaints voiced by the Author’s Guild that Google Books would negatively impact the market and that the snippets could be collected into a substitutable book, Chin details the lack of logic within their arguments:

 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. 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.

And, the final rebuttal to the oddity of arguing that exposure would decrease sales:

An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. Indeed, both librarians and their patrons use Google Books to identify books to purchase. 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.

In his concluding remarks, Chin again returns to the merits of Google Books with respect to public benefit. The decision as a whole is only 30 pages and well worth reading.

With the Author’s Guild already positioning itself for appeal, this story is not yet over.  But with such a decisive endorsement of fair use, and keeping in mind that this examination was expressly ordered by the Second Circuit Court of Appeals, the likelihood of this decision being overturned is slim.

Update October 2015

As was to be expected, Google Books met with success at the Second Circuit.  See here for my commentary.

And yet, the saga is not over. The ink was barely dry before the Authors Guild stated its intentions to appeal, claiming that this acceptance of fair use is a “faulty interpretation.” There is an air of desperation about the Authors Guild stance; rather than focusing upon the law, it emphasizes “Most full-time authors live on the perilous edge of being able to sustain themselves through writing as a profession …”

Canadians are accustomed to hearing such emotion as a substitute for argument; in August, Access Copyright heightened its pitch with a distorted assessment of fair dealing and the purported impact upon authors in Canada. As I have written since, and is apropos on both sides of the border, if authors continue to struggle after 300 years of expansion of copyright, “perhaps copyright is neither the problem, nor the solution.”

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