Google Can Go Ahead And Keep Scanning Copyrighted Books, It's Fair Use, Says Court

Capping off a lawsuit running since 2005, the U.S. District
Court for the Southern District of New York today
granted summary judgment to Google  to end the case
of Authors Guild v. Google.

Choice excerpt from the decision:

by helping readers and researchers identify books, Google
Books benefits authors and publishers. When a user clicks on a
search result and is directed to an “About the Book” page, the page
will offer links to sellers of the book and/or libraries listing
the book as part of their collections…..The About the Book page
for Ball Four [whose author is one of the parties suing Google
Books], for example,provides links to Amazon.com,
Barnes&Noble.com, Books-A-Million, and
IndieBound….

A user could simply click on any of these links to be
directed to a website where she could purchase the book. Hence,
Google Books will generate new audiences and create new sources of
income. As amici observe: “Thanks to . . . [Google Books],
librarians can identify and efficiently sift through possible
research sources, amateur historians have access to a wealth of
previously obscure material, and everyday readers and researchers
can find books that were once buried in research library
archives.”

The full decision in Author’s Guild v.
Google as a whole gives a pretty good mini history of
Google’s book scanning projects and a good defense of its many uses
to literary and scholarly achievements and culture. But the legal
nub of why Judge Denny Chin decided the authors can go pound sand
and Google triumphs is:

I assume that plaintiffs have established a prima facie
case of copyright infringement against Google…Google has
digitally reproduced millions of copyrighted books, including the
individual plaintiffs’ books, maintaining copies for itself on its
servers and backup tapes…..Google has made digital copies
available for its Library Project partners to download…..Google
has displayed snippets from the books to the public….Google has
done all of this, with respect to in-copyright books in the Library
Project, without license or permission from the copyright owners.
The sole issue now before the Court is whether Google’s use of the
copyrighted works is “fair use” under the copyright laws. For the
reasons set forth below, I conclude that it is.

The Judge then breaks down the four factors usually
considered in “fair use” determinations and finds Google wins.
(This excerpt doesn’t deal with all four points):

The use of book text to facilitate search through the
display of snippets is transformative….to a broad selection of
books. 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….Google
Books does not supersede or supplant books because it is not a tool
to be used to read books. Instead, it “adds value to the original”
and allows for “the creation of new information, new aesthetics,
new insights and understandings.”…

Google does not sell the scans it has made of books for
Google Books; it does not sell the snippets that it displays; and
it does not run ads on the About the Book pages that contain
snippets. It does not engage in the direct commercialization of
copyrighted works…Accordingly, I conclude that the first factor
[basically, is the use transformative?] strongly favors a finding
of fair use.

And the Judge thinks Google Books isn’t hurting the book
sales business:

plaintiffs argue that Google Books will negatively impact
the market for books and that Google’s scans will serve as a
“market replacement” for books…..It also argues that users could
put in multiple searches,varying slightly the search terms, to
access an entire book….Neither suggestion makes sense. Google
does not sell its scans, and the scans do not replace the books.
While partner libraries have the ability to download a scan of a
book from their collections, they owned the books already — they
provided the original book to Google to scan. Nor is it likely that
someone would take the time and energy to input countless searches
to try and get enough snippets to comprise an entire book. Not only
is that not possible as certain pages and snippets are blacklisted,
the individual would have to have a copy of the book in his
possession already to be able to piece the different snippets
together in coherent fashion….

a reasonable fact finder could only find that Google Books
enhances the sales of books to the benefit of copyright holders. An
important factor in the success of an individual title is whether
it is discovered — whether potential readers learn of its
existence….Google Books provides a way for authors’ works to
become noticed, much like traditional in-store book
displays….Indeed, both librarians and their patrons use Google
Books to identify books to purchase…..Many authors have noted
that online browsing in general and Google Books in particular
helps readers find their work, thus increasing their
audiences. Further, Google provides convenient links to
booksellers to make it easy for a reader to order a book. In this
day and age of on-line shopping, there can be no doubt but
that Google Books improves books sales…..

Google Books provides significant public benefits. It
advances the progress of the arts and
sciences, while maintaining respectful
consideration for the rights of authors and other
creative individuals, and without
adversely impacting the rights of copyright
holders. It has become an invaluable research
tool that permits students, teachers, librarians,
and others to more efficiently identify and
locate books. It has given scholars the ability,
for the first time, to conduct full-text searches
of tens of millions of books. It preserves books,
in particular out-of-print and old books
that have been forgotten in the bowels of
libraries, and it gives them new life. It
facilitates access to books for print-disabled
and remote or underserved populations. It
generates new audiences and creates new sources
of income for authors and publishers. Indeed, all
society benefits.

It’s a court decision so there are lots of interesting
complications in the whole thing, but that’s the jist. Google Books
as it stands can keep on truckin’ without compensating authors.