Dispatches from the Digital Revolution

Google claims Google Books is within fair use guidelines

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Update (August 7, 2012): PaidContent has published the full, 22-page Authors Guild motion for summary judgment. An earlier version of this post linked to the 3-page version initially released to the public.

I have to say, Google has some kick-ass lawyers. On Friday, July 27, Google’s attorneys submitted a motion for summary judgment in the case of The Author’s Guild, et al vs. Google Inc., and to say that it is a convincing, comprehensive defense of Google Books would be an understatement. Don’t worry; I read the 46-page gem, have digested its major points, and will now regurgitate them for you in an easier-to-read format.

I’m like the mama bird of copyright lawsuits.

Before we dive in, we should first consider why Google’s defense is important to the overall discussion of copyright law revision. This lawsuit could become the catalyst for an overhaul of US copyright law. The fact that it takes a lawsuit between two huge organizations to frame the fair use statute in terms of digital books exposes the inadequacy of the laws as they currently exist. On top of that, the undertaking Google has begun with the Google Books Project could lead to the first complete digital public library, something that would revolutionize the way we read and do research indefinitely.

Section I: Introduction

The motion begins with an introduction to Google Books. Simply stated, Google Books is a digital index of all the books it has scanned from the public domain and those contributed by libraries as part of the Google Books Library Project and publishers participating in the Google Books Partner Program. For a range of factors (that are explained later in the document), Google is challenging the plaintiffs’ claim that Google must obtain “permission from the authors of the books that were copied in the process of making the index.”

Section II: Summary of Undisputed Facts

Google has improved the nineteenth century card catalog system by making the full text searchable by users, (not just the tags and subjects assigned to the text by librarians). In the card catalog system, users would still have to go to the index of every book found and painstakingly comb through them to find mentions of a particular search term. With Google Books, users are shown search results of every book that contains even a single mention of the search term. Users can then use these results to view a limited context “snippet” surrounding the search term and evaluate its usefulness. Google also points the user to the stores and libraries where the book is available.

Google ensures the safety of the full text scans in a number of ways. To begin, it’s not possible to copy the text in snippet preview because it’s displayed as an image. It also ensures a user can’t accumulate many snippets by using different search terms, because it limits snippet preview to the first instance of a search term on a given page (even if there are multiple mentions of the term on the page), and “at least one out of ten entire pages in each book is blacklisted.” So, Google argues, even if a user sat with a copy of the book in front of him and tried to patch together the entire book using different search terms, he would still be missing at least ten percent of the book’s pages. “Of course, if the attacker had the book in front of him,” Google points out, “it would be much easier for him to scan it himself than to try to circumvent Google’s security measures.”

If as a rightsholder you’re still not persuaded, you have the option to exclude your work from snippet preview by filling out an online form; if a text is excluded, only the book’s bibliographic information will be shown in search results, and it will be labeled “no preview.”

Section III: Argument

Google borrows from “Toward a Fair Use Standard,” an article written by Judge Pierre N. Leval and published in the Harvard Law Review in 1990, to frame its conversation on fair use. Google cites Leval’s assertion that “‘fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design.'” The purpose of fair use and copyright law is to benefit the public and promote the dissemination of knowledge, Google argued, which is essentially what Google Books has done.

After establishing the purpose of fair use, Google moves on to a step-by-step comparison of Google Books and the four-part definition of the fair use statute. According to the statute, the four criteria used to determine whether something is fair use are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Factor #1

Google contends that its digital index is a highly transformative use, and uses court decisions to prove it. In Kelly v. Arriba Soft Corp. (2003), the copyright holder, Kelly, sued Arriba for copyright infringement after thumbnails of Kelly’s images were used on Arriba’s Internet search engine. Arriba argued that it was fair use, and the use of images in a search engine was indeed transformative. The court sided with Arriba, holding that “‘Arriba’s use of the images serves a different function than Kelly’s use—improving access to information on the internet versus artistic expression.'” As to the second part of the first factor, because Google doesn’t sell scanned books or snippets (there are no advertisements on pages displaying book snippets), it also doesn’t matter that Google is a commercial entity.

Factor #2

Ninety-three percent of the works in Google Books are nonfiction, and Google points to case law that suggests nonfiction works are more likely to be considered within fair use than fiction works. It’s also true that all the works included in the index have been published. This means it would be difficult to prove that Google Books has denied authors “the choice of whether to make their works public nor the chance for their works to make a splash in the crowded pool of books.”

Factor #3

Yes, Google has made a scanned complete copy of each book, but it has only done so because it’s necessary to make the book available in full text search. But isn’t that, in the most basic sense, still a violation of copyright (literally, the right to make copies)? Google says no. “The Supreme Court and the Second Circuit have both held that copying the entirety of a work may be fair use where that copying is necessary to the purpose of the fair use,” Google explains, citing Kelly v. Arriba Soft Corp. (2003) and Sony Corp. of Am. v. Universal City (1984).

Factor #4

Google argues that the snippet previews it displays in Google Books has no detrimental effect on the market for an author’s work or its value. In fact, it shows that Google Books actually enhances the market for a given title. Google reminds us that viewing a book in Google Books “does not substitute for the book itself.” Rather, it serves as a book discovery tool, allowing readers to find new books and giving them ways to buy or loan it. While the Plaintiffs don’t dispute this, they have argued that “in the absence of a finding of fair use, Google might be willing to pay to license their works for the purpose of indexing and snippet display.” Google’s response is that there’s simply no evidence that a market would have ever come to fruition, and speculative and future effects aren’t considered in the fourth factor. Also, just because there is a market for licensing a copyrighted work (as is the case for images in books), that doesn’t mean the option to exercise fair use no longer exists.

After explaining why the definition of fair use coincides with what Google Books does, Google launches into further explanation that “Google Books creates a significant public benefit.” Google Books allows users, for the first time, to search the full text of a book. The positive influence on scholarship is irrefutable. As one user commented on the Google Books Testimonials page,

I’m working on a Ph.D. dissertation in philosophy and education, and there are a few books that you have placed on line that are pertinent to my dissertation. All of these books are classics and I own them all. What is interesting, though, is that for those books you have online that are different editions from the one I own, I am inclined to buy the books anew so as to be able to refer to the copy you have online… I know of no better method for doing textual analysis than by using your service.

Unlawful Distribution Claim

One of the last claims Google debunks is the assertion that “[it] has violated § 106(3), which grants copyright holders the exclusive right ‘to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.'” Google urges the court to dismiss this claim because the digital copy is only obtained by the library that provided the copy in the first place—not the public. Also, Google argues that it is actually the libraries themselves that make the copy—Google only provides the technology necessary to do so: the Google Return Interface (GRIN). “Google does not initiate the creation of the encrypted copies of books that libraries download, and Google does not initiate the transmissions of those books to the libraries themselves. The libraries, not Google, do these things.” Because of this, Google should not be held liable for the copying the libraries have done (which they were within their rights to do anyhow).

That’s all, folks! Hopefully this summary is much easier to read than the lawyer-speak found in the motion for summary judgment. Lawyers for the Plaintiffs also filed a motion for summary judgment in their favor on July 27, which became available to the public thanks to PaidContent on August 6. More to come on the Plaintiffs’ arguments next week at AppazoogleBloomberg reports that “oral arguments on both parties’ motions for summary judgment are set for Oct. 9.”


This entry was posted on August 7, 2012 by in Business, News, Technology and tagged , , , , , .

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