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Fair use after Google Books

After eight years of often tortuous litigation over Google Books Judge Denny Chin ultimately made fairly quick working of dismissing the case. In 30 brisk pages Chin declared that Google’s unlicensed scanning and indexing of millions of copyrighted books falls easily within the realm of fair use and that society as a whole greatly benefits from making texts searchable:

Google’s use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative…

Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text — the frequency of words and trends in their usage provide substantive information.

The Authors Guild issued a statement vowing to appeal the ruling, but it’s unlikely to find a very receptive audience with the Second Circuit Court of Appeals, which will hear the appeal. Judge Chin himself now sits on the Second Circuit and it will be a heavy lift to get the court to overrule one of its own.

That’s particularly true in this case since Judge Chin’s ruling comes on remand, following an earlier ruling by the Second Circuit vacating Chin’s granting the plaintiffs class certification, in which it all-but instructed him to find fair use in the case (Chin somewhat cheekily signaled that he got the message by repeatedly citing Second Circuit Judge Pierre Leval’s 1990 treatise, “Toward a Fair Use Standard” in his opinion).

There’s obviously a lot to chew over here, but two points strike me as particularly notable:

1. Whatever you think of the ruling, it represents a major expansion in the scope of fair use. Many of the transformative societal benefits Chin cites as arguing in favor of fair use — the “comprehensive word index that helps readers, scholars, researchers find books,” the ability of scholars to conduct “substantive research” through data- and text-mining — arise only by virtue of the massive scale and scope — the very undifferentiated nature — of Google’s copying. A smaller selection of books, made up only those for which Google could obtain a license, would have resulted in a much less useful data set on which to conduct such research because it could not be presumed to be comprehensive or even representative of the universe of texts. Only by copying and indexing it all is it made useful.

It’s the logic of search supplanting the case-by-case adjudication of traditional fair use analysis. And it obviously holds implications for other mass digitization projects.

2. This will have significant repercussions beyond the U.S. Rights owners in Australia, led by the MPAA, were already up in arms over a government proposal there to adopt a U.S.-style fair use doctrine into Australian copyright law over the more limited fair dealing standard in current law. The government’s final proposal is due Nov. 30, and in light of Judge Chin’s expansive reading of the U.S. fair use doctrine, the pushback from MPAA and others is likely to be ferocious.

Similar copyright reform proceedings (or at least discussions) are currently underway at least six other Western countries, including Ireland, the U.K., Germany, France, Switzerland and The Netherlands, as well as the European Union as a whole. Many of those proceedings, often championed by Google, include proposals to expand the number of exemptions to copyright or to adopt standards modeled on the U.S. fair use doctrine.

Most of those proposals have been met with the same sort of outcry from rights owners as greeted the Australian proposal. Music rights groups in Ireland, for instance, were promising “blood on the floor” at a planned meeting this week to discuss a proposal there to adopt  a version of the U.S.-style fair use standard. And that was before Judge Chin’s ruling was even handed down.

It’s almost scary to think what could happen now.