On Thursday, U.S. Circuit Court Judge Denny Chin handed down a decision in one of the longest-running copyright cases in recent memory: namely, the lawsuit launched by the Authors’ Guild against Google, claiming that its book-scanning project amounted to a massive case of copyright infringement. Chin, however, ruled that the project is protected under the “fair use” principle, since there are clear public benefits to the indexing of millions of books.
Over the past few years (the case was originally launched in 2005) the Authors Guild has won support for its case from Google critics who believe that the web giant has amassed too much power — the same critics who have pushed for repeated antitrust investigations of the company’s quasi-monopoly in the search and internet-advertising markets, among other things.
But regardless of whether you believe Google is too big for its britches, and is trying to corner the market for digital content piece by piece, Judge Chin’s decision is still arguably the right one. The principle of fair use has come under so much fire in recent years that it’s nice to see someone supporting the idea that there is a public benefit to the widespread availability of content. And the ruling doesn’t prevent anyone from suing in the future if Google oversteps its bounds.
An ambitious idea or a malevolent scheme?
It’s fascinating to look back to the early days of Google’s book scanning, when the project was known as Google Print. At the time, it was seen by many as one of those enormous, public-spirited bets that only Google seems to undertake — like driverless cars, or giant balloons that hover over the earth and provide internet access. Scanning and indexing millions of books seemed like an almost impossible task, like boiling the ocean, but Google was willing to attempt it.
Soon the perception of Google started to turn, however — not just because of the Author’s Guild lawsuit, but other moves as well. As it acquired company after company and began to expand away from just search into other businesses that overlapped with services like Yelp and TripAdvisor and a hundred other businesses, opinion about its motives seemed to change.
Instead of being the plucky former startup that tripped over a business model and suddenly started generating billions of dollars in revenue, Google had become a behemoth: a company with a market value of more than $300 billion, and one whose fingers were in so many different pies, from mobile technology to travel and other services — all funded by those massive rivers of cash.
More recently, critics like Evgeny Morozov have taken repeated shots at Google’s ambitions to index the world’s knowledge, pointing out that this goal would result in a giant monopoly unlike anything we have seen in modern times. As Morozov put it in a recent essay in a German magazine:
“Would not it be nice if one day, when told that Google’s mission is to ‘organize the world’s information and make it universally accessible and useful,’ we would finally read between the lines and discover its true meaning: ‘to monetize all of the world’s information and make it universally inaccessible and profitable?’ Letting Google organize all of the world’s information makes as much sense as letting Halliburton organize all of the world’s oil.”
A new way to search for and even buy books
If you look at Chin’s decision, which my colleague Jeff Roberts has parsed the details of (and embedded in) his post on the news, you can see that the judge acknowledges this inherent dilemma: that is, the contrast between the public benefits of having millions of books scanned and indexed and available for public use, and the corporate interests of Google as a search engine that makes billions from advertising next to those search results. As Chin puts it:
“It is true, of course, as plaintiffs argue, that Google is a for-profit entity and Google Books is largely a commercial enterprise. The fact that a use is commercial tends to weigh against a finding of fair use. On the other hand, fair use has been found even where a defendant benefitted commercially from the unlicensed use of copyrighted works.”
The crucial point, as Judge Chin notes (and as other judges have noted in similar cases such as the Hathi Trust case, which is related to the Google Books case) is whether the use to which Google is putting these copyrighted works qualifies as “transformative” — in the sense that it adds value or uses the work in a different and beneficial way. The judge decided that it clearly does this, just as using thumbnails of images for search purposes qualifies as transformative.
Among the many benefits of the book-scanning project, Chin pointed out that it “provides a new and efficient way for readers and researchers to find books” by making each and every word and phrase in those books searchable. Google also expands the range of readers who can access those books by making them digital, Chin says. And in a very obvious jab at the Authors Guild and its rationale for launching the suit, he adds:
“Finally, by helping readers and researchers identify books, Google Books benefits authors and publishers. When a user clicks on a search result and is directed to an “About the Book” page, the page will offer links to sellers of the book and/or libraries listing the book as part of their collections. Hence, Google Books will generate new audiences and create new sources of income.”
This decision will help others as well as Google, whether it’s the Hathi Trust or the Digital Public Libary of America. Some supporters of an aggressive approach to copyright may see Judge Chin’s decision as the wrong one, but anyone who believes in fair use as an important principle should be cheering this ruling, regardless of whether they think Google is an evil monopoly.