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Don’t wait for Congress to fix fair use, says judge in Google Books case

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The federal judge in the long-running case between Google(s goog) and the Authors Guild made clear on Monday that no one should hold their breath waiting for Washington to decide if the search giant’s scanning of 20 million library books amounts to a “fair use” under copyright law.

“Does anything get done in Congress these days?” mused U.S. circuit judge Denny Chin, rejecting a call by authors’ lawyers to hold off on deciding the fair use question. He added that Congress has already proven incapable of solving the problem of “orphan works” books.

This means that Chin is likely to make an up-or-down decision soon on whether Google’s scanning was legal under “fair use” — a four-part test that looks at factors like the purpose of the copying and its effect on the original market. Google has argued that its activities are “transformative” because its purpose was to facilitate searching and indexing, not to supplant book sales. The Authors Guild counters that it’s not Google’s place to take scanning into its own hands.

Judge Chin, who rejected a settlement between Google, publishers and the Authors Guild in 2011, has been critical of Google’s fair use theories in the past. On Monday, though, he referred repeatedly to recent cases about universities’ digitization initiatives; judges in those cases found fair use.

The fair use hearing has placed Chin in an uncomfortable position because three of his colleagues on the Second Circuit Court of Appeals unanimously decided to reverse his earlier decision to allow the authors to go forward as a class action ruling, and punted the case back to Chin to address the fair use issue. One of those colleagues has made arguments in favor of fair use that appear in an oft-cited Supreme Court decision.

Chin must now decide whether to bite his tongue and declare that Google’s scanning was a form of fair use — and accept what amounts to a “no harm done” theory from Google — or else say it was not fair use, in which case Google will almost certainly appeal the matter back to his colleagues.

At Monday’s hearing, a lawyer for the authors harrumphed that Google was “the copy shop of the twenty-first century” and that the company is getting rich off book-related searches. This argument may be wearing thin, however, given that there’s little evidence that Google’s book search function undercuts online book sales.

The overall case is further complicated because of the appeals court’s decision to halt the class action. The absence of a class action means that Google could simply choose to settle with the two individual writers who are now carrying the torch for the whole litigation, and put an end to the matter. (If this happens, the appeals court could reinstate the class action, but it’s far from certain that they would do so.)

There’s also the question of money. Litigating cases up and down the New York appeals scene is not cheap and, unlike Google, it’s unclear if the Authors Guild has the resources to go on forever. The best answer for everyone involved may be for Google to get a fair use ruling (especially as no else is going to digitize the world’s libraries), and for the company to provide a gesture that acknowledges authors’ desire for dignity.

Monday’s hearing was shorter than anticipated and its biggest surprise may have been the high profile Googlers in attendance. Head counsel and SVP David Drummond was there, as well as renowned copyright scholar Bill Patry. So was Alexander MacGillivray, a longtime Google lawyer who recently stepped down as general counsel of Twitter.

(For more background, see my ebook The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library. It’s available for $2.99 here.)

13 Responses to “Don’t wait for Congress to fix fair use, says judge in Google Books case”

  1. Mary, thanks for the response. Fair use has always been, in my understanding, limited to only PARTS of the text, and then only for educational, review, parody, or other such purposes. Under that assumption, I can’t understand why, when I have searched a phrase, I can see such large, intact amounts of text in Google’s bookscans. My own books are there, certainly in larger “preview” chunks than those offered by my publisher, Amazon, Barnes & Noble, etc. I wonder whether they have nailed down a percentage of the whole text to display, or what formula they are using to decide how to make text searchable without giving away the whole work. “Transformative” still seems a nebulous phrase that means whatever people want it to mean, at their convenience.

    Maybe I’m mistaken, but I feel that being allowed to read whole chapters of text online is tantamount to using Google as an e-reader. Surely Congress has heard the “Why buy the cow when you can get the milk for free” adage. I applaud the intention of making information more accessible to everyone, but I feel that this is going to be one of those cliffs no one wants to jump from first. As an author, I am edgy about this whole slippery slope. Thanks for your insight!

    • Nicki,

      When you see more than a “snippet” (three or so lines around a keyword) you are looking at a book that is not part of the Library Project but of the Partner Program. Google Book Search has two parts: the library project (where they procured and scanned books from libraries and display only snippets without permission) and the Partner Program (where they have gotten permission from the publisher to display an agreed-to amount of the book). Only the Library Project is the subject of this lawsuit. It sounds like your publisher has agreed to have your book included in Google’s partner program. That use is not a fair use but a licensed use, for which no one gets any money but presumably it’s a marketing tool for the book.

  2. Someone educate me – I am still having a hard time understanding how exact text snippets of a work are considered “transformative” under this whole umbrella. In my understanding, a transformative work is fundamentally different from the work from which it’s derived. How can it be considered “transformative” when the work, in whole or in part, is unaltered?

    • Nicki: the entire database of books is transformative. They’ve been scanned and indexed s so that they are searchable via keywords. That’s the transformation: google’s book search product is new use that didn’t exist before.

  3. Toby Leith

    Can anyone please explain to me why the question of whether or not Google benefited, and publishers were harmed, is framed solely by the affect on books sales and ad revenue generated from page views of those snippets?

    While Google was “only” making snippets available publicly, what were they doing with the data privately? Improving search algorithms? Building a more precise system of semantic contextualization?

    • tetracycloide

      The question of whether or not Google benefited isn’t actually material to the legal questions at issue. It’s just a red herring the Author’s guild keeps throwing around because in their eyes if Google benefited in any way they are due money. The law, thankfully, doesn’t work that way or there would be no such thing as fair use for commercial products.

      Looking at book sales isn’t a framing of if the Publisher’s were harmed. It’s an end unto itself pursuant to the application of the four factor test. One of the factors is the effect the book scanning has on the potential market for the books so the question of book sales is integral to the question of fair use. Very little effect or no effect means that factor of the test swings to fair use.

  4. BenjaminGilead

    “There’s also the question of money. Litigating cases up and down the New York appeals scene is not cheap and, unlike Google, it’s unclear if the Authors Guild has the resources to go on forever”

    Don’t worry AG is being funded by Microsoft. MS wants to prevent Google from advancing in book scanning.

  5. What do you mean there’s no evidence that the search kills sales? Of course there’s no evidence. You can’t prove a negative. You can’t prove that sales didn’t happen because of any particular reason. But you can use your brain. If Google is distributing huge parts of the books and calling it “fair use”, then people aren’t going to buy.

    But let’s flip this on its head. Google has a nice “buy this book” link next to the free copies they distribute. How many books has Google sold? What kind of conversion rate do they offer? Let’s make that public. Do 10% of the browsers say, “Gosh, I’m so happy that I’ve read 40% of the book that I will now buy the whole thing.” Or so 99.9% say, “Gosh, that was all I needed. Thanks Google.”

    I’m betting they actually sell copies less than 1/10 of 1% of the time. So let’s make this fact public.

    • tetracycloide

      First of all, that’s not proving a negative it’s proving evidence of a correlation between two things. Second, if it is indeed impossible to provide evidence that it hurts sales then that factor of the four factor test should, by default, fall to fair use. Even if it doesn’t there are other fair use factors.

      40% of the book available and 99.9% don’t buy sound like a numbers someone made up on the spot. Do you have a source for them? Regardless of the percentages what difference would it make at all if the buy rate was only 0.1%? If it’s fair use that’s irrelevant and the question of if it is fair use or not doesn’t hinge on how many people use the service and go on to buy the book anyway.