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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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By putting these restrictions in place, Chin found that what Google was really creating was a “new and efficient way for readers and researchers to find books” as a searchable index to books rather than actual copies of the books themselves. As an index, the project addresses such diverse needs as identifying research resources; interlibrary loan activities; data mining, text mining, and other forms of text analysis; and creating works that are compatible with software and services for print-disabled persons. As such, Google’s use was transformative under the Fair Use Doctrine, in that it uses text to improve search through the use of the snippets. Chin compared the snippets to the thumbnails of images commonly displayed in search results and found to be fair uses of those images. The project also uses text to create data for data mining and analysis, “thereby opening up new fields of research.”

In addition, Chin found that the Google Books project did not impact the authors’ market for their books. Chin rejected the guild’s argument that the scans serve as market replacement for the original books. Pointing out the difficulty that a user would have in creating a replacement, along with the blacklisting of sections of the book, Chin found that the guild’s market replacement argument did not make sense. In fact, Chin asserted that “Google Books enhances the sales of books to the benefit of copyright holders,” by dramatically increasing the chance that specific books will be discovered by potential purchasers.

The Author’s Guild disagreed with Chin. In a statement, Paul Aiken, the guild’s executive director, said, “We disagree with and are disappointed by the court’s decision. … This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense.”

Commentators are also starting to weigh in on the decision. Blogging for The Washington Post, technology writer Timothy B. Lee described the decision as not only a “significant triumph for Google,” but also an expansion of fair use rights that would benefit other technology companies. The Association of Research Libraries described the ruling as a victory for transformative, nonconsumptive search. In addition, it notes the similarities between the Google Books decision and a separate, previous decision in a case involving HathiTrust, both of which have strongly endorsed fair use. By contrast, writing for Salon.com, staff writer Andrew Leonard described the decision as a “crushing victory” for Google, but he did express concern that Google may be “ruffling some serious feathers” a bit too much in its efforts to “organize the world’s information.”

While the Author’s Guild has vowed to appeal, it has not as of this writing. Any appeal would not be heard until well into 2014. In the meantime, the Google Books project survives—and, according to The San Francisco Chronicle, has scanned its 20 millionth book.


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George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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