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Google calls book scanning “transformative” in latest push for fair use ruling

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Google(s goog) and the Authors Guild’s eight-year legal fight over digital books is coming to a head once again, as both sides prepare to make their final case next month about whether Google’s scanning of more than 20 million library books is fair use under copyright law.

In documents filed in New York federal court this week, Google argues at length that the scanning is “transformative” — a legal concept that gained importance after the Supreme Court used it in 1994 to rule in favor of rappers 2LiveCrew, who had sampled the Roy Orbison song “Pretty Woman” without permission. Google argues:

“Google has copied no more than is necessary to achieve its transformative purpose and give rise to the social benefits of full-text search…Google improved on existing indices so substantially that its use was transformative.”

The “transformative” factor is not an automatic shield against copyright infringement. Instead, the term is just a sub-section in a four-part test that courts use to look at fair use. But in the case of the Google book scanning case, the term will carry extra significance because one of the judges overseeing the case wrote a famous article that helped define “transformative” in the first place.

The judge, Pierre Leval, was part of a three-judge appeals court panel that earlier this year stopped a class action against Google and ordered the lower New York court to first address the fair use question.

The appeals court ruling reversed a string of losses in the case for Google, which included a high-profile ruling by U.S. District Judge Denny Chin in 2011 that rejected a controversial three-way settlement between Google, the Authors Guild and publishers. (Judge Chin, who now sits on the appeals court alongside Judge Leval, is still hearing the original case by special assignment.)

The Authors Guild, meanwhile, filed its own brief that blasts Google’s transformative argument: “[The] only thing ‘transformative’ about Google’s display of snippets of in-print books is that it transforms online browsers of book retailers to online users of Google’s search engine.”

At the same time, both sides are invoking the publishing practices of Amazon(s amzn) to support their position on fair use: Google notes that Amazon’s Book Search pages can lead to a sale for the author on, and points out that Amazon’s own “Search Inside the Book” feature displays entire pages of a book. The Authors Guild, meanwhile, claims that Google Book Search pulls away customers who would otherwise buy books on Amazon.

Both sides’ decision to invoke Amazon is ironic, given that the retailers’ dominance in the book market was prime reason that Google and the Authors Guild decided to create the now-failed settlement in the first place.

In the latest filings, the sides also spar over whether the digital library created by Google is safe from hackers.

Here’s Google’s latest filing with some of the key parts underlined. (For more background, see my The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library. It’s available for $2.99 here.)

Google Opposition to Authors Guild Motion for Summary Judgment (1)

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10 Responses to “Google calls book scanning “transformative” in latest push for fair use ruling”

  1. Remember what Google gets out of this. They’re tracking what books you read (or are even interested enough to click on) so they can sell that information to others. All of Google’s services are based on that principal. They recently argued in court that no one should have any expectation of privacy when using Google Mail because they will mine it for data. Google is one creepy company.

  2. Folks, you may be right that Google’s efforts will make books sell better. You’re certainly right that it will make material that is in books easier to find.

    Both points are not relevant. There are lots of things that I’d like to do, but can’t because they violate someone else’s rights, especially their property rights.

    Google is seizing property rights, and exploiting them for its own profit, without permission from the people who own that property. THAT’s the issue.

    If a book is in a bookstore, it’s because the owner of the copyright has chosen to sell copies to that store. Google isn’t allowing them to make that choice.

    Now, reasoning by analogy, the court may decide that this seizure is permissible. But that doesn’t change the fact that this is a seizure.

  3. Transformative my eye. Google may (or may not — no one really knows) drive customers to purchase the books listed.

    And scan-index-search-snippet/thumbnail has already been declared to be fair use in other arenas, so it probably is here also, especially if they honor the opt-out selection that some publishers make. (Right now, their record on honoring opt out choices is spotty.)

    But let’s not be disingenuous. The ruling is based on the societal utility of search which has been deemed to trump the usefulness of allowing authors to control the rights to their work. It’s a straight up “seizure for the greater good” argument, and let’s not pretend that it’s anything less.

    For those who think that it’s going to help all rights-holders in all situations, I can only say that you’re suffering from a profound lack of information about the book business or an equally severe lack of imagination. And in any case, that decision really should be opt-in, and left entirely in the control of the people to whom these rights belong.

    Theft is theft except when it’s eminent domain. . . . .

  4. In this case, I must side with Google.

    Google Books indeed is revolutionary, and it makes knowledge/information more accessible to the public. Otherwise, these books would be sitting on library shelves–unknown and unread.

    Also, unless a book is in the public domain or a writer has permitted, you cannot read it in its entirety on Google Books. You can only preview a few pages. How is that any different from, say, a brick-and-mortar bookstore?

    • Revolutionary? That’s horse manure. Companies like Lexis-Nexus have been indexing material forever. But the difference is that they actually shared some of their profits with the people who did the hard work to create it. Google didn’t do anything new– except ignore the rights of the people who did the hard work in the first place.

      And the number of pages Google allows you to see has ticked down over the years — but only in response to this lawsuit. In the beginning, I remember reading 20 pages in a row before Google would delete one page from the feed. Then they would let me read another 20+ pages before they would delete one more gratuitous page. This only changed because the authors challenged the all-powerful Google.

  5. What a bunch of jerks. The next thing you know, kids who plagiarize their homework will be calling it “transformative” because it left them enough extra time to throw a party for their friends. And we all need parties, right? So the plagiarism was a social good.

    The lazy scum at Google can’t bear to share anything at all with the authors, can they.