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

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Google 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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