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Summary:

The long-running lawsuit over Google’s decision to scan millions of books could be nearing the end game. Google’s latest filing, in a case poised to redefine copyright law, cites everything from Mad Men to minority rights to argue that book scanning is “fair use.”

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photo: Google

Google cites everything from Mad Men to minority rights in a fresh attempt to bolster its claim that the scanning of millions of books qualifies as a “fair use” under copyright law. The arguments, set out in court filings submitted on Friday, come as Google’s long-running dispute with the Authors Guild heads toward an end game.

According to Google, its massive book scanning project is fair use because the scanning has delivered many public benefits without harming authors. The company claims that its creation of full-text book searching is “the most significant advance in library search technology in the last five decades” and that the Authors Guild has shown “no evidence that Google Books has displaced the sale of even a single book.”

The new filing (embedded below) is in response to Judge Denny Chin’s deadline for Google and the Authors Guild to submit arguments on why the case can be decided without a trial. This is just the latest phase of a legal dispute that began in 2005 after authors and publishers sued Google over its ambitious plan to create a massive digital library. The lawsuit was on ice for several years as the parties worked out a settlement that would have created an online market for the books. Judge Chin blew up the settlement in March 2011, however, after concluding that it was a “bridge too far.”

Chin now has to decide whether Google must pay for scanning each book without permission or whether the scanning amounted to “fair use.” The test for fair use involves looking at four factors, including whether the copying was “transformative” as well as the reproduction’s effect on the market for the original work.

In its filing, Google cites a number of pop culture examples to argue that a searchable digital library is a benefit to the public. For instance, Google cites an Atlantic article (“The Foreign Language of Mad Men”) that relied on a Google Book search to show that characters in the hit show Mad Men were using dialogue from a later era. The company also describes how book searches unearthed references to an unheralded baseball player, Steve Hovley, that would otherwise have remained buried. And Google cites the more serious example of Minoru Yasui, a civil rights lawyer who is all but invisible in the Library of Congress catalog but surfaces repeatedly in Google Books.

Google also cites evidence suggesting that online book discovery helps authors sell more copies. It quotes a memo from literary agency William Morris that says “inclusion in Google Books is a fair use and not detrimental to the copyright owner in any way” and points to the Authors Guild’s own suggestion that writers make a chapter of their book freely available on the internet.

The Authors Guild, which is expected to submit its own motion for summary judgment later today, has repeatedly argued that Google had no right to take copyright law into its own hands and reproduce authors’ works without permission. The Guild is also at the center of a related fair-use case with libraries over the “Hathi Trust,” a massive digital replication of their paper collections.

Both fair use cases pose considerable challenges to America’s copyright laws, which were largely written during the pre-digital era. Librarians, Google and others argue that courts must adapt copyright’s strict bans on reproduction to reflect the age of digital distribution. The Authors Guild, on the other hand, fears that expanded fair use notions will dilute the integrity and value of books.

Here’s a copy of the filing (note: underling mine) :

Google Motion for Summary Judgment

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  1. Reblogged this on Red Paint Blog and commented:
    Not sure how I feel on this one. The idea that it won’t cost authors any sales seems ludicrous, but being able to do a search and find passages from any number of books sounds VERY useful. What I really want to know is: Where was this tool when I was in high school?

  2. Tim Acheson Friday, July 27, 2012

    Google would say that, wouldn’t they. It’s an excellent PR manoeuvre, because it cannot easily be disproved (or proved). But it’s obvious that Google’s behaviour has the potential to harm sales and hence revenues for the author and publisher who did the hard work. Any copyright criminal or pirate could make such a claim.

    Google call it “fair use” but they know it’s not. In reality such blatant copying of copyrighted material is obviously exactly the type of thing the law seeks to prevent, though no lawmaker could have envisaged it would happen on such a vast scale.

    The problem for the victims, apart from being the little guy up against a huge corporation, is that it’s difficult to claim damages without proving exactly how much money has been lost.

    The law does not protect you or I very well against such a powerful enemy who has broken the law on such an industrial scale.

    1. I agree that they should not be allowed to freely scan copyrighted materials in their entirety, or use other sources of gathered information for commercial use, without permission, but I also agree that they should be allowed to scan a chapter of a book as a form of advertising for the property. It would be like test-driving a car before you buy it. I think the book publishers and independent authors could strike a deal which would be in the best interest of all parties involved. I won’t buy a book unless I have to, but if I like a song on the radio, I might buy the album.

    2. > But it’s obvious that Google’s behaviour has the potential to harm sales and hence revenues for the author and publisher who did the hard work.

      How exactly is this happening? Google is not allowing ANYBODY to read the whole copyrighted book on Google Books. The best that anyone can do is search the book for a phrase or word, and see a few pages before or after the book. For all books still under copyright (and for which the author/publisher has not agreed to allow a full copy online), Google shows only limited excerpts. It’s no different from going to a book store and checking out a few pages of a book before making the decision to buy it.

      Unless you can explain how it is harming sales and revenue, please don’t spread disinformation.

      1. Okay here’s one: one of the most serious threats to sales today is online piracy. Writers losses to piracy are in the many millions. By exposing copyright material on its very high-profile site with mimnimal protection, Google greatly enlarges that problem. Here’s a second: many searchers only want to reference a part of a book. Google allows them to do that without biuying the book. We could go on. Google in effect is saying “we know better than you how you should market your product and we are going to give away millions of free samples wheter you want us to or not.” Whether their marketing idea is right or wrong, the whole point of private property is that the owner has exclusive control over its diposition and no Big Brother has the right to come along, seize control, and say “let me show you how to do this.”

    3. It’s not obvious. They are not selling books they scanned. Access to book data is strictly limited (exception is metadata). And explain how googles behaviour has the potential to harm sales? If anything else – gooble books project is a big teaser for poeple to buy the book they found with google books service. You’re saying that making trailers for movies has the potential to harm sales of said movies?

      Google books project spurred this:
      http://en.wikipedia.org/wiki/Culturomics
      among other things. Hollywood was a blatant copyright infrigment on a massive scale. Now look at them.

  3. Brett Glass Friday, July 27, 2012

    The fact is that Google Books cost authors the sale of EVERY BOOK IT SCANNED. Even libraries pay for at least one copy of every book they put out for loan, but Google went into libraries and scanned their collections and therefore paid ZIP, nothing, nada to authors. Even though it was scanning the books for commercial purposes.

    Google should be required to pay for a copy of every book it scanned, and then pay royalties every time it delivers a copy of one of the books.

    But of course GigaOm, which receives substantial revenue from Google and is essentially a PR arm of Google, won’t note any of the above. It’ll just put forth Google’s bogus arguments.

    1. You say that Google cost authors because it went to the library? By that argument, every single person who goes to a library also pays nada to authors, so cost authors the sale of EVERY BOOK EVER LOANED. This is clearly a false premise.

      Your second premise is that Google should pay royalties “every time it delivers a copy of one of the books”. However, Google does not deliver copies of the books, only excerpts. Those excerpts would certainly be classified as fair use on their own, but the question is whether the technology to convert the books into that form is fair use.

      If the use of scanning technology to copy the entire volume and store it on Google’s servers is found not to be fair use, then there must be some type of penalty. Perhaps your suggestion to pay each of the authors for one book would be a good one, but time and time again, the Author’s Guild has established that they do not want the money to go to the authors, they want it to go to the Author’s Guild.

    2. You say that Google cost authors because it went to the library? By that argument, every single person who goes to a library also pays nada to authors, so cost authors the sale of EVERY BOOK EVER LOANED. This is clearly a false premise.

      Your second premise is that Google should pay royalties ”every time it delivers a copy of one of the books”. However, Google does not deliver copies of the books, only excerpts. Those excerpts would certainly be classified as fair use on their own, but the question is whether the technology to convert the books into that form is fair use.

      If the use of scanning technology to copy the entire volume and store it on Google’s servers is found not to be fair use, then there must be some type of penalty. Perhaps the terms you have proposed might be a fair settlement, but certainly not for the reasons you have proferred.

      1. Google did not just “go to the library;” it COPIED the library. For profit. That’s not “fair use.”

        What’s more, while Google has stated its desire to make entire works available, even making excerpts available harms authors. Once you get the excerpt you need, why buy the book?

      2. Brett is wrong. Google has not stated anywhere that it wants to make an entire copyrighted book available. The only books Google makes available in entirety are those which are already out of copyright and/or those which are allowed by their authors/publishers to be made available in its entirety.

        Most people who need excerpts only don’t buy an entire book. They go to the library and get the excerpts they need. Google is just helping to cut out the trip to the library, which is a most welcome move in the digital age.

      3. Google absolutely HAS indicated its intent to distribute entire books if it can get away with it. In fact, it pushed to have a provision allowing this included in the “settlement agreement” which the court rejected.

    3. Thanks for the comment, Brett. Three things:

      — Your ‘commercial purposes’ point is a good one. If Judge Chin agrees the scanning is largely a commercial enterprise, that could sink Google’s fair use argument.

      — Even if the act of scanning is fair use (debatable), there is the question of whether Google should pay for letting libraries keep a copy.. Google addresses this in its filing around p. 33 (it’s response is that it’s the libraries who are making the copies)

      — Re GigaOM and Google: like any reputable publication, we have a church/state policy b/w business and editorial.. Any bias inflected into a story is from the writer.. In this case, I was describing Google’s filing, not endorsing it.

      As for my own position on Google Books, I’m torn.. On one hand, if Google hadn’t scanned the books, we’d be back where we were 10 years ago.. Also, it seems a shame that so much knowledge is under lockdown and unavailable to scholars (though this is as much the fault of our absurdly long copyright laws than Google opponents).. But on the other hand, critics like the Authors Guild make a good point that it’s not up to Google to decide when the law applies and when it doesn’t

      1. > If Judge Chin agrees the scanning is largely a commercial enterprise, that could sink Google’s fair use argument.

        Correct me if I am wrong, but isn’t fair use allowed for commercial purposes? For example, I can have a commercial business whose sole purpose is to make money by sarcastically reviewing bad movies. I could show clips from the bad movies for fair use, couldn’t I?

    4. Brett Glass: “even making excerpts available harms authors. Once you get the excerpt you need, why buy the book?”

      That would depend on why you want the excerpt to begin with, wouldn’t it? If I want to quote two paragraphs or less to support a paper I’m writing, I’m NEVER buying a book for such a purpose to begin with; I would use a library copy if there were no Google Books project. In that context, using an excerpt found via Google books gives the same result as my having used a library copy – but I’m done more quickly because I don’t have to bother going to the library or checking out the book! No harm to the author or publisher because I never had any intent to purchase the book in the first place… but the excerpt COULD potentially change my mind, and cause me to buy the book because there’s a chance I might want to read the entire book if the sample I read was interesting enough.

      On the other hand, if I read a larger excerpt – say one or even maybe two whole chapters – that would be for the purpose of helping me decide to either buy the book or not. If my interest is still keen after reading the longer excerpt, I might be interested enough to buy the book at that point… and, without having read such a long excerpt it’s 98% certain I would NOT buy the book in most cases. So, once again, no harm to the author or publisher because I was not certain I would buy the book before reading the excerpt, but potential benefit to both author and publisher if I did read and like the excerpt.

      And then there’s the used book market. If the book is more than a few years old, I can likely find a free or cheap used copy to buy – for which neither the author or publisher received any payment from my purchase… and quite frankly, that’s what I do about buying most books that I buy. Only a few lucky authors and publishers get money from the books I purchase, because only about 12 to 15 books a year make the cut to be purchased new from my meager book budget.

      1. “If I want to quote two paragraphs or less to support a paper I’m writing, I’m NEVER buying a book for such a purpose to begin with; ” You can also argue that the cheesy action movie that you just downloaded off the torrents was not worth $20, so you were never going to buy it anyways. That still does not make it fair use. It still is a copyright violation.

  4. David Thomas Friday, July 27, 2012

    Yeah, sure, Google should get a pass on paying for content they re-purpose to collect advertising fees because they provide a service unparalleled in human history. They shouldn’t be forced to share revenue with the copyright owners because what they’re doing is so awesome and they need that full revenue stream for themselves to stay so awesome. That’s the defense the best money can buy –

    1. You are absolutely wrong. The earlier settlement that was being negotiated included a clause wherein Google was willing to share advertising revenue with the books’ authors/publishers, much like it does with website owners who display Google’s ads on their sites.

      In addition, Google is helping authors/publishers get more exposure to their books. Plus Google was also going to have an option for the people to buy the books through its website, which translates to direct revenue to authors/publishers.

      This is a story of authors/publishers who are too stupid to understand modern technology, kicking a gift horse in the mouth. There is a whole industry built around websites that want to show up favorably in Google search results to increase exposure to whatever is offered/sold on those websites. The website owners know that exposure on Google translates to real money. Google is offering a similar gift for free to authors/publishers for FREE. And the stupid authors/publishers are suing Google for it.

      1. Jeff John Roberts A S Friday, July 27, 2012

        A S — Re: your point above re: commercial use, you’re right that commercial doesn’t qualify a finding of fair use.. This is just one part (“purpose and character of the use”) of the four part ‘fair use’ test

        Perhaps I should have been clearer. My point was that if Judge Chin decides that the use is PREDOMINATELY commercial, he is likely to find against Google on that part of the four-part test (which in turn will weaken its overall fair use case) .. You can see Google’s own position on this in the filing above (p 20-23) where it argues that its status as a commercial enterprise doesn’t matter given that the use of the work in question will typically be research, etc.

      2. The point that Google is not “offering a …gift..” They are FORCING copyright owners to accept something that they insist is a gift but the owners do not agree that is a gift. If private property rights mean anything, it means the owner has the right to decide, not the third party with the bright idea.

      3. “This is a story of authors/publishers who are too stupid to understand modern technology, kicking a gift horse in the mouth.” You might be right, but owning something means being able to refuse an offer that Google or anybody else swears is in your interest. Google did not ask for permission. It decided to scan the books, make excerpts available and decide to share some of the revenue after deciding by itself what the authors deserve out of this sharing argument.

      4. So the point is, an author that does not want the world to be able to find their content has the right to have it yanked?

        I understand, the ability to fade in to obscurity is a right and Google should honor that.
        Good thing Amazon allows me to read excerpts too. And some amazingly funny reviews too.

        Honestly, as long as Google only gives me a paragraph or two, or allows me to do a keyword search and I do find the book I’m looking for, how is this a bad thing? I might even buy a book I never knew existed before. And without this wonderful search functionality, I would never know to look in that book either.

        How this is a losing situation for the authors?

  5. I can say that Google’s book scanning didn’t stop ME from buying a book, since none of the books are complete. Most even miss exactly the parts I’m looking for.

    Go, tell that to the Google lawyers, they can add my statement to their defense.

  6. The courts have yet to decide if I’m allowed to scan books that I own in order to read on my digital device. I’d consider it Fair Use but there’s been no court decision that affirms this and the publishers are more than happy to remind you of this fact.

  7. I hope Google doesn’t get hurt too bad over this. I use Google Books to search texts that I already own. It truly is AWESOME to have a search bar for some of these 500+ page hardbacks.

    Maybe we can have a way to sign our book’s serial numbers into Google and be able to search the entire digital version that way?

  8. If search engines were sued for scanning freely available but copyrighted content into their indexes in the ’90s we wouldn’t have search engines at all today, and we’d be looking up web pages in the phone book.

    I kinda don’t see the difference here.

  9. erniebornheimer Sunday, July 29, 2012

    I hate to agree with Google in this case, but I’ve never not bought a book because of Google Books. The only thing I use it for is to locate quotes. It saves me from requesting books from the library (which I would not have bought). It doesn’t affect my book-buying behavior.

  10. Chris Castle Monday, July 30, 2012

    Reblogged this on MUSIC • TECHNOLOGY • POLICY and commented:
    What does Google’s counsel Daralyn Durie do for an encore after union-busting fails in Google Books? Argue that scanning 20 million books, lyrics, illustrations, photographs, etc., is fair use. You should understand that what Google does in the books case is exactly what they are going to do in the YouTube class action which is pending in the same New York courts (2nd Circuit)

  11. Mainly the only full downloads of complete books on Google are older books in the public domain: Meaning the authors and their close heirs are long dead, and have any of you complainers ever actually used Google books? If you did you would realize that the books still under copyright protection aren’t available for download and all around, it is awesome to be able to find full copies of old books dated as far back as the 1600’s.

  12. Chris is right, this ruling will have fallout across the creative industry. If Google can do it with books, then it follows that it can do it with plays, music, video, movies, architectural drawings, and images with impunity. Do creators have a right to refuse to be put in a search engine if that is their desire?

    While I like the research ability I can get from Google books, perhaps this should rightly be the realm of the Library of Congress, and not a public company.

    1. I fail to understand how not having the ability to have your works seen by someone that has never heard of you is a bad thing?

      Also, does the Library of Congress have the infrastructure to support such a massive operation? Seriously, how can any organization other than Google pull this off?

      As long as Google doesn’t give the public more than fair use allows, how is this bad for anyone? So many works would come out of obscurity and gain new life as profitable works.

  13. Chris is right, this ruling will have fallout across the creative industry. If Google can do it with books, then it follows that it can do it with plays, music, video, movies, architectural drawings, and images with impunity. Do creators have a right to refuse to be put in a search engine if that is their desire?

    While I like the research ability I can get from Google books, perhaps this should rightly be the realm of the Library of Congress, and not a public company.

  14. Not Microsoft Tuesday, July 31, 2012

    What a load of BS. We should be thanking Google for scanning books and showing us where we can find relevant material from the comfort and freedom of our laptops. I’ve bought a lot of books SOLELY because I found passages using Google book search THAT I COULD NEVER FIND IN TODAY’S OBSOLETE LIBRARY SYSTEM. Furthermore, I bought the books from AMAZON, not GOOGLE. It’s impossible for me to understand why there are all these complaints about Google. Sure Google makes a lot of money. But from my experience, there are NO COMPANIES that have provided as much free value as GOOGLE. NONE. Sketchup, Android, MapReduce, Gmail, Search, Docs, ON AND ON —- ALL FOR FREE. Thanks Google. You are one of the few companies that doesn’t calculate SHORT TERM PROFITS in every frigging business decision.

  15. I am truly surprised they are not working hand in hand! When I upgraded my phone, switching from blackberry to Android it was the first thing I checked out! Their snippet of Neptunes Inferno hooked me and I went and bought the book! I wasn’t looking for it….it was just a sample they offered. This silly lawsuit needs to be dropped and they need to talk business!

  16. Robert Gottlieb Wednesday, August 1, 2012

    Here are the facts. Google like many large and powerful companies feels it is okay to change the law so they can benefit. Whether it is copyright or the Libor rate I feel Americans have had enough of this type of behavior by large corporations.

    It is irrelevant whether an author makes money or not. What is relevant is that there is a history of copyright law in most of the 2Oth century and into this one that says a user cannot simply take some one else’s copyrighted material and use it as the wish without permission. This case should have been thrown out early on. Google does not want to go to the expenses of contacting each copyright holder so they want to change the law and say if they use some else’s material and the owner finds out then they will remove it from their system. (I am not refering to “free usage” which does not fall withing the framework of this discussion.)

    It is like saying you can move into a landlords apartment and don’t have to pay rent until the owner of the apartment discovers you are living in his apartment. Then you can decide what to do.

    America should not become another China which does not respect copyright ownership.

    RG

    1. I am confused what you are scared of? An author selling works that have long since fell off any publishers or the public list?

      As long as Google does not give more than Fair Use allows, many authors could benefit massively from gaining a world wide audience/market. Maybe those authors would start publishing again. That would be wonderful.

  17. Michael Mendershausen Thursday, August 2, 2012

    Authors and publishers will probably prevail at the Supreme Court. Still, here is how we counter Google and others in the future: In all our contracts, we deny any electronic or other type of copying of our intellectual works by Google or any other entity including our own publishers and public or private libraries. In no case may our work be copied or disseminated without our permission and fair payment for such copying or disseminating.

  18. If Google reproduces a photograph at full size in their image search they are breaking the law. Yet they can display a photograph in a book at full size, which can be easily copied (as all the text can) by using the Printscreen button and they claim they are not breaking the law?

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