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Google’s Fair Use Defense Prevails in Google Books Lawsuit
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Posted On November 19, 2013
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A federal court in New York gave Google a huge victory that may likely end its 9-year fight with the Authors Guild and individual authors over the Google Books scanning project. In a 30-page opinion, Judge Denny Chin determined that Google’s practice of scanning copyrighted books from public and academic libraries and making “snippets” available as search results was a fair use of the books. The court determined that the project provided “significant public benefits” and is an “invaluable research tool” that constituted fair use. The Authors Guild, however, declared Chin’s decision as only “round one” and has indicated that it will appeal.

This history of Google Books and the lawsuit dates from 2004 when Google announced a plan to work in partnership with public and academic libraries to scan their books into a massive database. The libraries would receive a digital copy of the scanned books, and Google included its database into the results of Google searches. Searches that encountered scanned books would get a snippet from the book (a snippet is a short section of text to provide the context for the search term), along with information about the book, including links to booksellers and owning libraries.

The books that Google scanned included large numbers of copyrighted works. In response to what it perceived to be a massive copyright infringement, in April 2005 the Authors Guild, along with various individual authors and publishers, filed a copyright infringement lawsuit against Google. The lawsuit went through years of litigation proceedings including a widely publicized proposed settlement, which would have allowed Google to use and market its database in return for payment of royalties to authors. However, the settlement was rejected by Chin as Google’s exclusive access to the database raised antitrust complaints, and because the database violated the rights of objecting and non-U.S. copyright owners. Google was later able to negotiate a separate settlement with the publishers, leaving only the Authors Guild and the individual authors to pursue the case.

From the beginning, Google has claimed that its scanning and publishing of snippets and its providing digital copies to libraries is protected by copyright’s Fair Use Doctrine. The Fair Use Doctrine is an exemption to the rights of copyright owners that allows new users to build on existing works in order to create new, “transformative” works. Found at Title 17, Section 107 of the United States Code, it provides that uses of copyrighted works for purposes “such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright.” The Supreme Court had said that the Fair Use Doctrine is necessary to “fulfill copyright’s very purpose,” which is, as expressed in the U.S. Constitution, to “promote the Progress of Science and useful Arts.”

Chin’s opinion focused on this underlying purpose in asserting that the Google Books project was permitted. Google Books, he said, “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.” Among its advances, Chin asserted, were as an “invaluable research tool” for students, teachers, scholars and librarians, as a means of preserving books—particularly those that have been “forgotten in bowels of libraries,” providing access to “print-disabled and remote and underserved populations,” and that Google Books generates new audiences and new income sources for authors and publishers. “Indeed, all society benefits.”

Chin’s opinion focused extensively on how the project protects the works that it has scanned from rampant duplication. First, Google Books provides a complete digital copy of the scanned book to only the library that owns the book, and imposes restrictions on their use. For the use of books as part of Google Search, there are several security measures in place to prevent a search from using multiple snippets to re-create the work. These include fixed snippets, rather than those that slide through the text, blacklisting as much as 10% of each book, and not providing snippets of certain works such as dictionaries and cookbooks.


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George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School of Law. He writes the Legal Issues column and feature articles for Information Today.

Email George H. Pike
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