22 November, 2013

Google Free to Scan Books - For Now

Google Books is a great resource, especially for books which have gone out of copyright. As a part of their vast repository of both partially available and fully available titles, Google has taken upon themselves the task to digitize millions of books from libraries in their Google Books Library Project. As stated by Google this Project aims to "...make it easier for people to find relevant books – specifically, books they wouldn't find any other way such as those that are out of print – while carefully respecting authors' and publishers' copyrights. Our ultimate goal is to work with publishers and libraries to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers". As one can imagine, several publishers did not like this initiative and sued Google over the Project. After a legal battle that has been waged for over 8 years, the matter has come to an end - at least for the time being.

The case of Authors Guild v Google came to its initial conclusion a little over a week ago, and the decision has already shown a clear division of opinions. As briefly explained above, the case concerned Google's attempts to digitize book collections from public libraries in the United States, having digitized over 20 million books since the effort began almost 10 years ago. The main concern for the copyright holders in the case, represented by the Author's Guild as a part of a class-action lawsuit, was the provision of 'snippets' of books which were still under copyright (making the entire book searchable), in addition to a multitude of books no longer under copyright. The plaintiffs in the matter argued that Google was infringing copyright in the digitization of these books and providing the snippets for the public to view as a part of their search results in Google Books.

"Daddy, what's a 'book'? Why isn't it on the computer?"
What Justice Chin had to decide was whether Google's use of the books fell under the US doctrine of fair use. More specifically the Court was concerned as to whether the use would amount to a 'transformative' use, or in other words, adds something new to the old work or alters its expression or meaning. In the Court's view Google's use of the books was indeed transformative, due to the creation of an index of the information which aids readers, scholars and the like in the finding of books. The service also aids libraries in their work in identifying and finding books. Under an overall assessment of the four factors Google's use would fall under fair use. The Court also accepted that the text snippets provided did not infringe copyright as their only provided a mere glimpse into the expressive value of the books.

Justice Chin weighed the benefits that the service provides heavily in Google's favor in his decision, in his mind: "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". In addition to the benefits the service provides the Court saw that Google could not be liable as a secondary infringer, as the libraries themselves do not infringe copyright in their uses of copyrighted material; "...if there is no liability for copyright infringement on the libraries part, there can be no liability on Google's part".The plaintiffs have indicated that they will appeal the decision to the US Court of Appeals, potentially lengthening the proceedings till 2015 if the matter goes all the way to the Supreme Court.

The decision was also criticized by Hillel Parness (a partner at Robins, Kaplan, Miller & Ciresi), where he stated that "[t]he suggestion is that if a particular unauthorized use of copyrighted materials becomes ‘essential’ or ‘important’ to society, the fact that it was brought about by brazen, unapologetic copying becomes far less important... It gives rise to the dangerous idea that allowing society to become accustomed to - or even reliant upon - such widespread commercial copyright infringement will damage the ability of the rightsholders to obtain relief". Whether Mr. Parness' concerns are valid is questionable, as the provision of books as searchable results does not, at least in this writer's mind, provide individuals with an effective route to infringe copyright. Should Google provide full text versions of the books the matter would be different; however a index of books and some of their content fulfills a useful tool for readers, not infringes.

As said the Google Books saga has yet to face its ultimate conclusion, but this writer for one believes the result was right. Whether the decision is upheld on appeal will remain to be seen, but Google should keep optimistic about their chances. As HathiTrust before it, fair use for digital indexes seems to be firmly within fair use.

Source: GigaOM

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