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Google's Book Scanning Constitutes Fair Use, Court Rules

  • Nov 18, 2013
  • Staff
  • Newly Filed / Newly Settled

Eight years ago, a lawsuit was launched by the Authors Guild over Google’s mass-scanning of copyrighted materials. Google, as part of its Google Books program, was accused of infringing authors’ copyright protections by making previews of millions of books available through its search engines. The Authors Guild, along with some publishers and authors, took affront to the company’s use of their materials without any compensation or, indeed, permission. Google argued that the previews amounted to no more than a card catalogue for the modern age – and now Judge Denny Chin has ruled in their favor, saying that the project is a fair use of copyrighted material.

Google’s program advances the progress of the arts and sciences.

The decision follows years of legal wrangling and has been hailed by the Electronic Frontier Foundation as a “remarkable” ruling and a “common sense analysis [and] recognition of the key purpose of fair use: to make sure copyright serves, and does not impede, the public interest.”

The digitizing of copyrighted material in such large quantities by such a large company is an understandably complex and controversial issue. On the one hand, authors are nervous about their intellectual property being recreated and distributed without receiving any financial compensation (while Google may well benefit from the material being available). On the other hand, the doctrine of fair use is designed to ensure commentary, criticism and, crucially, cataloguing can be achieved without fear of reprisal.

In the end, the court came to its decision largely because Google’s actions were found to be beneficial to society. The ruling noted that Google’s program “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.

The Authors Guild’s suit was brought in part over worries that the scans could become a “market replacement.” In other words, the scans could threaten sales by providing a free alternative to legally purchasing the books. The court did not agree:

[A] reasonable factfinder 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 . . . 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.

The Authors Guild plans to appeal the ruling.

The balance between fair use and commercially-advantageous copyright infringement may seem more muddied during the digital age, but Google’s insistence that its intention was to help rather than make a profit seems to have struck a chord with the court. The decision has been widely hailed by online commentators as a victory, though Slate.com did caution that the verdict could add to the “growing body of intellectual-property case law that incentivizes successful tech and media companies to steal first—or aggregate, or whatever—and answer questions later.”

Should authors be worried that their material can be previewed online without payment? It may take some years to determine whether Google Books is truly beneficial to writers. For now, the legal fight looks set to continue.

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