After eight years of litigation, we finally have an answer to the central question in the Google Books case, and it’s a good one: Google’s scanning, indexing, and display of snippets from copyrighted books are fair uses. In an opinion that is long on praise for the project and short on doubt, the judge in the case wrote that Google’s use of the books is “highly transformative” and not infringing. The long-awaited ruling is a big win for Google, libraries, and access to information more broadly.
Background will be easy to find online today, but briefly: The Google Library Project is an ambitious effort to treat library stacks like Google treats the web: crawl their books, index the pages, and make it all fully searchable. Google partnered with various academic libraries around the world and just started scanning. The libraries get digital copies of books in their collections to use for archives and increasing accessibility, and Google and the world get a huge new text corpus for search. In 2005, The Authors Guild and others filed a class-action lawsuit, claiming copyright infringement in the scans, the library copies, and the search engine’s return of snippets of text in response to queries.
In 2011, the parties attempted to settle the case, with a sweeping collective-licensing agreement that would have granted Google the rights not just to scan, index, and offer search, but to sell digital copies of the books. In exchange, Google would make payments into a centralized registry for distribution to known rights holders. The novel proposal received a great deal of attention from across the tech and information policy field (both vigorously pro- and con-), but was ultimately rejected for not being “fair, adequate, and reasonable” for class-member plaintiffs.
CDT supported the settlement, while proposing stronger protections for reader privacy. We recognized though, that a downside of the settlement was that the legal opportunity it offered to build (and yes, to profit from) valuable tools to increase accessibility to orphan and out-of-print works would be limited exclusively to Google.
One of copyright nerds’ quieter laments when the settlement was pending was that, if approved, it meant we wouldn’t get the decisive fair-use victory many of us thought Google had coming. Now we have it. Judge Chin writes at some length about the benefits of Google books to readers, libraries, and authors – improved discovery, new material for text-mining and linguistic research, expanded access for the visually impaired, digital preservation, and links back to sellers – summing up his analysis by writing “Indeed, all society benefits.” The opinion quickly and decisively walks through the 4-factor fair-use analysis, noting that these benefits are “highly transformative” and that “Google Books does not supersede or supplant books because it is not a tool to . . . read books.”
In short, it’s a clean win and a very important ruling. It unequivocally validates Google’s position and (pending appeal) removes significant uncertainty about the project. And where the settlement would have worked only for Google, this ruling means that Google and anyone else are free to develop and apply technology to help liberate books from the relative obscurity of dusty stacks.
A similarly strong finding of fair use in the HathiTrust digital library case is currently on appeal. CDT joined a brief in that case defending the application of fair use to scanning, indexing, and search.
Both the HathiTrust and today’s ruling set a precedent that should apply to all sorts of copyrighted works. Technology offers the potential to give the public powerful tools for exploring the world’s information. These cases should be upheld on appeal so that potential can be realized.