Google Books: Fair Use or Copyright Infringement?

Submitted by patentadmin on Tue, 09/24/2013 - 15:30

Judge Denny Chin of the United States District Court for the Southern District of New York has a decision to make: Is the Google Books Project transformative enough to be considered fair use, or is it just copyright infringement on a grand scale?

For those two or three of you who are unfamiliar with Google Books, it is a Google project that has seen the scanning of over 20 million books since 2004. But unless the book is in the public domain, it isn't available in its entirety - only as a snippet. Google Books offers links to sites where the book can be purchased, such as Amazon, Barnes & Noble, Books-A-Million and others - as well as a "Find in a Library" link.

The case of the Authors Guild against Google dates almost as far back as the Google Books project itself: The Guild filed suit in 2005 over Google's plans to create the world's largest digital library. Last year the case was awarded class action status, but Google appealed and the 2nd U.S. Circuit Court of Appeals ruled that the question of fair use must be decided before class action status can be granted.

So the case is back before Judge Chin, who must consider whether the snippets are comparable to thumbnails shown by a search engine (as Google argues) or whether they are displaying authors' copyrighted content without their consent or their input on how the content is displayed.

But Google seems to be very careful about how (and how much) the book content is displayed. Works whose copyright has expired can be read in their entirety, such as this 1919 edition of Louisa May Alcott's Under the Lilacs, scanned complete with beautiful color illustrations. But newer versions of the book that are still under copyright can only be previewed and purchased.

And for some books, only one or two lines of text is displayed. Click "Where is the rest of the book?" beneath the preview window, and you get this explanation:

"[O]ur partners [in the Google Books Partner Program] decide how much of the book is browsable — anywhere from a few sample pages to the whole book. Some partners offer the entire book in a digital edition through Google eBooks, in which case you can purchase the book...But if the book is under copyright, and the publisher or author is not part of the Partner Program, we only show basic information about the book, similar to a card catalog, and, in some cases, a few snippets — sentences of your search terms in context. The aim of Google Books is to help you discover books and assist you with buying them or finding a copy at a local library."

The judge himself seems to be leaning toward a finding of fair use. He described how his own law clerk had found Google Books very useful for conducting background legal research - a new purpose the works might not have had otherwise. "Aren't these transformative uses?" he mused.

It seems that more and more publishers and authors are beginning to see things Google's way: In June of this year, a group of major publishers settled with Google. Since the effect of copying is actually to make purchasing books easier in many cases, it's hard to argue lost sales. And Google argues that many authors support the project, which gives their works wider exposure. (This writer has discovered and purchased more than one work through the use of Google Books.)

The sticking point, apparently, is that Google receives advertising revenue from search results related to the project - so Google Books is at least somewhat commercial in nature, and not purely academic. But whether those ad revenues mean the use is not transformative is the issue that the judge will have to decide.

The Authors Guild wants $750 per copyrighted work scanned into Google Books, which could potentially cost Google more than $3 billion.

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