The seven-year fight between authors and publishers over Google’s attempt to scan and digitize millions of books as part of its Google Library Project is almost certainly one of the longest-running copyright battles of the web era. The company recently agreed to settle a lawsuit launched by the Association of American Publishers, but a similar lawsuit with the Authors Guild is still under way — and now Google has just been given what looks like some powerful ammunition from a federal court in a related case, involving a group of universities known as the Hathi Trust, who were helping the search giant with its scanning program for research purposes.
There are elements of the Hathi Trust decision that make it different from the issues raised by the Google case, since it involves universities rather than a corporate entity, but the bottom line is that a federal court has decided scanning of books for search purposes is not an infringement of copyright — or rather that this activity is covered under the principle of “fair use,” and therefore should be allowed to continue. And in my opinion (and that of many others) the court was right to do so.
Some authors and publishers clearly don’t like the concept of fair use as it applies to books, because they believe it infringes on their rights as creators and owners of intellectual property — that is, the right to control whatever happens to their work, in any context. But the court reiterated that fair use exists for a crucial reason: namely, to allow others to transform and re-use parts of copyrighted works for artistic or other socially-beneficial purposes. And whether the Guild likes it or not, scanning books so that they can be indexed and searched clearly falls within that description.
The court accepted the fair-use case without a trial
One sign of how clearly the court believes this is that Judge Harold Baer’s decision was a summary judgement, meaning he didn’t think there was any point in even going to trial to argue the details of the case. As a post at the Copyright Librarian points out, “winning on summary judgment means the court agrees your arguments are a slam-dunk.” In his decision (which is embedded in full below), the judge says:
“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use… I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.”
The parts of the Hathi Trust case that make it distinct from Google’s battle with the Authors Guild have to do with the purposes for which the books were being scanned. For example, Judge Baer found that protecting old works from physical deterioration by scanning them was a “transformative use” (one of the four factors the courts take into account when deciding whether something should qualify as fair use), and that making digital books available for the use of visually impaired and other handicapped users was also an important element of the program.
Those kinds of arguments likely wouldn’t hold as much weight for Google itself, except as they apply to scholarly works that are provided to universities and projects like the Hathi Trust. A big part of the Authors Guild case rests on the fact that Google is a corporation with a profit motive, and therefore shouldn’t be allowed to scan copyrighted books without permission, even if its index makes them easier for buyers to find and purchase (Google also shows excerpts or “snippets” for all of the books that it scans, while the Hathi library only shows excerpts for public-domain books).
Indexing books for search is clearly fair use
But even here, the Hathi Trust case provides a substantial amount of ammunition for Google’s defence, because Judge Baer ruled that scanning books for the purpose of indexing them and making them searchable was an important transformative use — something that has also been found in other similar copyright-infringement cases against Google (such as the Perfect 10 lawsuit involving the use of thumbnail images). And that transformative use, he suggested, outweighs other factors such as the potential impact on the commercial market for the works in question.
Quoting from a previous court decision, Judge Baer said: “A copyright holder cannot pre-empt a transformative market.” And he dismissed the Authors Guild argument that scanning and indexing a book doesn’t qualify as a transformative use because it copies the entire book exactly, rather than making use of a part or adding something to the original work:
“The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material… Plaintiffs’ argument that the use is not transformative merely because defendants have not added anything ‘new’ misses the point.”
In the end, Judge Baer said that his decision was determined by the original goal of copyright law, which is to promote research and knowledge. As he put it: “The ultimate focus is the goal of copyright itself [and] whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’” His ruling makes it clear that the Hathi Trust project met that test, and based on his arguments there is every reason to believe that Google could win its case on similar grounds — and that would be in everyone’s best interests, as much as the Authors Guild would like to believe otherwise.