“This one has been a long time coming, but this morning, Judge Denny Chin (who actually has a long history of siding with copyright holders) found that Google’s book scanning project is fair use. This is a huge victory in a variety of ways. Five years ago, we thought that Google made a huge mistake in dropping its fair use fight here, in trying to work out a "settlement," which would have harmed fair use by suggesting these kinds of things needed to be licensed, while also setting up a near de facto monopoly on digitizing books. Thankfully, that settlement got rejected, and the fair use argument went back into the courts. Actually, Judge Chin first focused on whether or not this should be allowed as a class action, but in a somewhat surprising move, the appeals court basically ignored that issue entirely and told Judge Chin to answer the fair use question first.
He’s now done so and it’s a fantastic victory for fair use. The ruling relies on last year’s ruling in the similar HathiTrust lawsuit, in which the Authors Guild sued a bunch of universities for banding together to scan books in their libraries. There, the court pointed out that this was clear fair use, and Chin finds the same here with Google. He runs through the well-known "four factors" test, noting that Google’s work "is highly transformative," comparing it to other cases, that have said Google’s image search efforts are similarly fair use. But he goes further, in noting how valuable the end result of scanning these books and making them searchable really is.
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.
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."
Chin also rejects the idea that it can’t be fair use just because Google is a commercial enterprise, noting that there are lots of commercial enterprises that rely on fair use, and also pointing out that it’s not engaging in "direct commercialization of the copyrighted works," but those works lead to indirect commercial benefit. That’s not enough to remove fair use, especially when "the fact is that Google Books serves several important educational purposes."
Chin also points out that these book scans do not act as a market replacement for the books, and actually says that the very argument that it does doesn’t make 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.
In fact, he points out:
To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.
It all comes together in making a very strong argument that Google’s book scanning promotes the progress of the arts and sciences just like copyright is supposed to do.
In my view, 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.
This is a huge win for the public, for science, for research and for most authors who will undoubtedly benefit from expanded search and discovery of their works. The Authors Guild, led by luddite Scott Turow, not only look completely out of touch, but they’ve wasted nearly a decade and a tremendous amount of their members’ money on a completely wasted effort to impede the progress of science and knowledge. Isn’t it time the Authors Guild had a boss who was forward-looking, rather than trying to pretend he can bring back the world that existed in the 1980s? Even worse, Turow, famously is a practicing attorney, as well as a best-selling author. So it’s not even like he can claim he was suckered into this by bad lawyers. He should have known better.