April 23, 2014

Digitization: Google Prevails in Authors Guild Lawsuit, Summary Judgment Filed New York District Court

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UPDATE November 19: More Comments About the Decision

UPDATE: Ian Chant from Library Journal reports on the AG v Google news.

UPDATE: We’ve added comments (see below) from Paul Aiken, Exec. Director of Author’s Guild. He tells ars technica that AG will appeal decision.

Coverage of the Decision

Commentary and Analysis

I do have a wishlist however [on things to get done after the decision] , and at the top of that is for us to turn our attention to making the digitized texts even more useful by turning that uncorrected OCR into a more faithful reproduction of the original book.
Many of us will long debate the significance of this ruling and its implications.  The court of appeals will necessarily add to the conversation.  For now, however, this ruling joins court decisions about HathiTrust and electronic reserves in demonstrating that even extensive digitization can be within fair use where the social benefits are strong and the harm to rightsholders is constrained.  There will be more to come as we transition into a new era of copyright, technology, and even reading.

Unless today’s decision is overruled by the Second Circuit or the Supreme Court — something I personally think is very unlikely –, it is now absolutely clear that technical acts of reproduction that facilitate purely non-expressive uses of copyrighted works such as books, manuscripts and webpages do not infringe United States copyright law. This means that copy-reliant technologies including plagiarism detection software, caching, search engines and data mining more generally now stand on solid legal ground in the United States. Copyright law in the majority of other nations does not provide the same kind of flexibility for new technology.

The great thing about this case moving away from class action settlement and towards actual court rulings on the substantive legal issues, is that the resulting rulings do not just apply to Google. If it’s fair use for Google to do this kind of stuff, it probably is for others as well.
Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors. Indeed, digitization and search give “new life” to books that would otherwise have been “forgotten in the bowels of libraries.” Well, okay, libraries could probably have lived without that last part.
Taken as a whole, the ruling is remarkable.  Not so much for its conclusions – we’ve believed from the get-go that the Google Books was a lawful fair use.  Instead, what’s really refreshing about the ruling is its common sense analysis and its recognition of the key purpose of fair use: to make sure copyright serves, and does not impede, the public interest.
 I think that the long term impact of the decision may turn on the acceptance of Chin’s approach to technology’s transformation of copyright, which I would characterize as Black-Box Jurisprudence.

Library Community

Reaction from the Library Copyright Alliance (ACRL, ALA, ARL)

After eight years of litigation, the U.S. District Court for the Southern District of New York today upheld the fair use doctrine when the court dismissed Authors Guild v. Google, a case that questioned the legality of Google’s searchable book database.

The Library Copyright Alliance—which is comprised of the American Library Association, the Association of College & Research Libraries and the Association of Research Libraries—welcomes Judge Denny Chin’s decision to protect the search database that allows the public to search more than 20 million books. In his dismissal of the case, Judge Chin enumerated the public benefits of Google Book Search by calling the project transformative and a fair use under the copyright law.

“It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books,” Judge Chin wrote, referencing an amicus brief submitted by the Library Copyright Alliance. “It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life.”

“It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.”

“ALA applauds the decision to dismiss the long running Google Books case,” said Barbara Stripling, president of the American Library Association. “This ruling furthers the purpose of copyright by recognizing that Google’s Book search is a transformative fair use that advances research and learning.”

“This decision, along with the decision by Judge Baer in Authors Guild v. HathiTrust, makes clear that fair use permits mass digitization of books for purposes that advance the arts and sciences, such as search, preservation and access for the print-disabled,” said Carol Pitts Diedrichs, president of the Association of Research Libraries.

“I echo the comments of my colleagues that this ruling, that strongly supports fair use principles, enables the discovery of a wealth of resources by researchers and scholars,” said Trevor A. Dawes, president of the Association of College & Research Libraries. “Google Books also makes searchable literally millions of books to students and others with visual disabilities. This is a tremendous opportunity for all our communities.”

In 2005, the Authors Guild sued Google over the scanning of over 20 million library books from several research libraries without the prior authorization of rights holders. The purpose of the digitization project was to create a searchable index of books that would allow key word searching of the collections of major research libraries. The searchable index is accessible to the public who would not otherwise be able to search research collections.

The District Court ruling bodes well for libraries, scholars, and researchers in the pending appeal of Authors Guild v. HathiTrust. Judge Chin agreed with Judge Baer’s fair use analysis in the HathiTrust case, indicating that the result in the Google case is compatible with the HathiTrust decision and suggesting a favorable decision on appeal.

News Reports

Via Reuters

 Google on Thursday won dismissal of a lawsuit by authors who accused the Web search and media group of digitally copying millions of books for an online library without permission.

The judge said the massive library makes it easier for students, teachers, researchers and the public to find books, while maintaining “respectful consideration” for authors’ rights. He also said the digitization was “transformative,” and could be expected to boost rather than reduce book sales.

“In my view, Google Books provide significant public benefits,” Chin wrote. “Indeed, all society benefits.”

Read the Complete Article

From Bloomberg

Google Books digitizes books and transforms expressive text into a comprehensive word index that helps researchers and others find books, Chin, an appeals judge sitting in U.S. District Court, said in his opinion.

“Google Books does not supersede or supplant books because it is not a tool to be used to read books,” the judge wrote. “Instead, it adds value to the original.”

Google does not sell the scans it makes of books or sell the snippets of books it displays although the company does benefit from users drawn to the site, Chin wrote. Writers also benefit because the scanning project could enhance the sales of books, he wrote.

From Gigaom:

Chin also rejected the theory that Google was depriving authors of income, noting that the company does not sell the scans or make whole copies of books available. He concluded, instead, that Google Books served to help readers discover new books and amounted to “new income from authors.”

[Clip]

“This has been a long road and we are absolutely delighted with today’s judgement.  As we have long said Google Books is in compliance with copyright law and acts like a card catalog for the digital age – giving users the ability to find books to buy or borrow,” said a Google spokesperson by email.

From the NY Times

So much time has passed since the lawsuit was originally filed, Mr. Grimmelmann said, that the issue of digital scanning has diminished in importance.

“By taking eight years from the lawsuit to resolve this, book scanning has gone from an exciting novelty to part of the background of the industry,” he said. “This has been going on for so long that it’s just part of the business now. And you’re seeing how many exciting new uses that can come out of it.”

From Agence France Press

The decision was also praised by the Computer and Communications Industry Association, whose members include Facebook, Microsoft, Samsung and other technology companies.

“This ruling is a vindication for transformative technologies online,” said Matt Schruers, CCIA’s vice president for law and policy.

From the The Wall St. Journal

The ruling is significant in part because Judge Chin found that the Google’s book scanning created a service that was transformational and benefitted all of society, said Corynne McSherry, the intellectual property director at the Electronic Frontier Foundation.

The digital civil liberties group, which focuses on fair use and digital rights online, earlier filed a friend-of-the-court brief supporting Google.  “This was about making a book searchable online and enabling users to discover books that they might not have known about otherwise,” said Ms. McSherry.

Court Finds Google’s Book Scanning Is Fair Use: Highlights From The Ruling (via Search Engine Land)

Judge Defends Google’s Book-Digitization Project (via Courthouse News Service)

 Authors Guild

Update: Paul Aiken, Exec. Director of Authors Guild Tells Joe Mullin at ars technica that AG Will Appeal Today’s Decision

Authors’ Guild Executive Director Paul Aiken expressed his disappointment with the ruling, saying that Google’s book-scanning project is a “fundamental challenge” to copyright.

“Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works,” said Aiken. “In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

The Guild is going to appeal, he added.

These comments were also posted on the AG blog in a post titled, “Round One to Google: Judge Chin Finds Mass Book Digitization a Fair Use. Guild Plans Appeal”

Graphics

Full Text of Decision

Authors Guild v. Google Decision

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Gary Price About Gary Price

Gary Price (gprice@mediasourceinc.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. Before launching INFOdocket, Price and Shirl Kennedy were the founders and senior editors at ResourceShelf and DocuTicker for 10 years. From 2006-2009 he was Director of Online Information Services at Ask.com, and is currently a contributing editor at Search Engine Land.