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Google wins book-scanning case: judge finds “fair use,” cites many benefits

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Google(s goog) has won a resounding victory in its eight-year copyright battle with the Authors Guild over the search giant’s controversial decision to scan more than 20 million books from libraries and make them available on the internet.

In a ruling (embedded below) issued Thursday morning in New York, US Circuit Judge Denny Chin said the book scanning amounted to fair use because it was “highly transformative” and because it didn’t harm the market for the original work.

“Google Books provides significant public benefits,” Chin wrote, describing it as “an essential research tool” and noting that the scanning service has expanded literary access for the blind and helped preserve the text of old books from physical decay.

Chin also rejected the theory that Google was depriving authors of income, noting that the company does not sell the scans or make whole copies of books available. He concluded, instead, that Google Books served to help readers discover new books and amounted to “new income from authors.”

The ruling is being hailed on Twitter by librarians and scholars, who intervened in the case to urge the court to declare that Google Books was fair use — a four-part test that seeks to balance the rights of authors against broader interests of society.

“This has been a long road and we are absolutely delighted with today’s judgement. As we have long said Google Books is in compliance with copyright law and acts like a card catalog for the digital age – giving users the ability to find books to buy or borrow,” Google said in an emailed statement.

Author’s Guild Executive Director Paul Aiken said by email that the group would appeal the decision. He added:

“We disagree with and are disappointed by the court’s decision today. This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

The decision itself comes as a volte-face for Judge Chin, who expressed major skepticism about the project in a highly-publicized 2010 ruling that blew up a three-part deal between Google, publishers and the Authors Guild that would have created a market for the scanned books. Chin also agreed last year to allow the cases to proceed as a class action — but the U.S. Second Circuit Court of Appeals reversed that decision and ordered Chin to instead rule on the fair use question. Thursday’s ruling is effectively an acknowledgment by Chin that the higher court (on which he now sits) wanted him to find fair use.

The ruling is unlikely to sit well with some authors, including Scott Turow, who have decried Google’s scanning as an indignity and a money grab.

The latter idea — that Google is profiting off the books at the expense of authors — has been a rallying cry for opponents of the book scanning. Chin’s ruling, however, takes care to reject the notion in detail, and states that Google “does not engage in the direct commercialization of copyrighted works.”

There is also the question of who will pick up the legal tab for eight years of high-priced litigation:

Chin’s ruling is also likely to be decisive in a companion case between the Authors Guild and the HathiTrust, a group of university libraries that have created a shared corpus of digital books for scholars and students. The HathiTrust case is on appeal, but the group’s victory at the lower court stage may have paved the way for today’s decision:

The ruling is below with key portions underlined. For more perspective, see Mathew Ingram’s “Whatever you think of Google, the book-scanning decision is the right one.” (For more background, see my ebook The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library.)

Google Books ruling on fair use.pdf

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39 Responses to “Google wins book-scanning case: judge finds “fair use,” cites many benefits”

  1. The only group getting hurt is the massive publishing houses trying to hock World Book Encyclopedias to under financed school districts. If your only viable income stream is libraries and schools, you don’t deserve an income stream to begin with.

    Also, what are you talking about in terms of “research”; you’re an alien fiction writer. Your research is about as valuable as my nephew’s book report on volcanoes.

  2. but google and us gov will censor our videoo’s on youtube because they don’t like what we point out even though its completely legal under fair use! FUCK GOOGLE oh wait the NSA already did!

  3. Finally something good comes out of these lawsuits. Idiots who think scanning books is bad are so 1900s. Wake up to the future. If a determined group of greedy crazies will insist on not letting Google do this all they will accomplish is deprive rights holders from getting their books a wider audience. I don’t really understand how can one be so stupidly blind and not see that allowing people find excepts of books (Google doesn’t publish the whole thing, right?) is any different from printing same on the back cover or at the end of the other book – which already happens.

      • Janine Latus

        The snippets for my book are more like shark chunks. Any idea what percentage of the book Google can make available for free?

        As a researcher I love it that I can search books online, but as an author I can’t support myself if people can so easily read my work without paying for it.

        (Is all this name-calling advancing the discussion?)

        • Thanks for the comment, Janine — I like the “shark chunk” analogy. Typically, Google just makes around 10% available so there’s now way people can read the work without paying for it. (And re the name-calling, well, welcome to the world of internet comments.. sigh)

        • Janine,
          If name calling upsets you – good, because it tells me you are not really worried about the book scanning issue itself. Most people who are slide through that without even noticing (I know I do). But if you like it the other way – here’s a nice way to say it.

          It may come as a complete surprise to you, but if I want to get your book for free I probably could – Google or not. It’s probably available from public library or via illegal e-book download or I can borrow a physical copy from someone – provided it exists in one of those forms anywhere outside of Library of Congress. In each case you are not going to see a dime, not a cent, not even a thank you note – I’ll take it, consume it and be done with it. And you know what? There’s nothing you can do about it. Not a single thing. You know how I know? Because I published something and that’s what happened.

          Now, if I search for your book and I find an excerpt and I read it and I like it – I’ll head straight for Amazon where I have my Kindle app set up or Barnes and Noble (if they’ll still around) or someplace else where Google points me to RIGHT FROM THAT EXCERPT – and I’ll buy the book. Because it’s good and I want the goodness and it will take me about 3 minutes from clicking the link to buy until the moment your book arrives on my whatever-reading-device. It saves me a lot of time – and I get paid for my time and it is valuable to me and I don’t want to waste it browsing around or asking my friends to run to my office right this second and bring me the damn book. I’ll just plain and simple go and buy it. Not because it’s a right thing to do, but because it’s the easiest option available. Being a right thing to do is secondary to about 50% of consumers, being a convenient option is primary to about 90%. I ran a few of the businesses, so I would know.

          So here are your options – stick it to people who want to give you their money and do it your way, because you forgot to check your calendar or make it easy for 90% of them and keep working on the next book knowing full well that those who want to buy your book have a lot of easy options available to them.

          The choice is still yours. For now.

  4. randydutton

    As an author and researcher, I’m split. I now will have access to more information, but feel property rights also will suffer.

    How soon before this goes to the Supreme Court?

    • Thanks for the comments randydutton.. This is very unlikely to go before the Supreme Court as there isn’t really a split between courts over the issue and I think the facts here are pretty unique — I don’t think anyone else is going to go around trying to scan every library book again. It would be like reinventing the wheel!

      • billy elliott

        I think you’re right in that property rights will suffer, but this reminds me of the music industry when mp3s became so ubiquitous. They had to find a different way to mine the value from their work. If only authors could tour like musicians and recoup much more than lost album sales…But i imagine not many people will want to sit while writers read their works.

        But that was a very surprising verdict with implications we can’t possibly see now at the moment.

      • For those who only want to be able to view and copy an excerpt from a work of non-fiction, one no longer has to go to the library or buy the book. One can find the passage one wants free. This will surely hurt scholarly authors.

        • Yes, and people don’t have to walk to the river to get water, or go to the restaurant to get a hot meal.

          Like the Alchemy Guild before you, you overvalue your contribution to society, I’m afraid.

    • Michael Sunders

      The books have no online-scanned alternative, meaning Google isn’t competing against any market.

      Google isn’t posting the full books, meaning they’re samples for research purposes only, meaning they wouldn’t take anything from the market even if there were scans online put up by the publishers.

      The world is changing- if people wan’t something, they’ll get it. If you don’t give the supply to their demand, someone else will. Cable companies are only beginning to learn this.

  5. I have a scanner can I scan any book and call it fair use? Hmm….Many companies overseas in Russia, China, Korea can scan/copy all they want and reuse at will. Hmm…Kinda like Samsung.

        • Michael Hughes

          It depends. US copyright law requires libraries to purchase a replacement copy in its current format assuming one is available. In other words, it’s not legal for me to copy a VHS and circulate it if a DVD copy is available for purchase.

  6. So the Authors Guild had 8 years to start scanning and selling books, but refused, even though they knew Google was doing it, and there was a huge demand?

    Dear Authors Guild,

    Stop living in 1972.

    Yours truly,