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) :