A win for Google and for libraries, a bigger win still to come? Perhaps...
Today, Judge Chen in the United States District Court in the Southern District of New York held that Google’s scanning of over twenty million books for research purposes, snippet views, data mining, text mining, bibliographic research, etymological research, to aid in viewing for handicapped… is fair use. But, wait, the Authors Guild is already talking about an appeal.
Since 2004, Google has partnered with the New York Public Library, the Library of Congress, and numerous university libraries to form the Google books program. This program has produced over twenty million different scanned copies of print books. Google provides various forms of access to each of these books based on agreements with the entity housing each book. Some views are multi-text, and other views are limited to a snippet view. The works contained in the Google books program consist of novels, biographies, children’s books, reference works, textbooks, instruction manuals, treatises, dictionaries, cookbooks, poetry, and memoirs. As a part of this project Google retained a digital copy of each book and provided each partnering library with its own digital copy of the books it loaned to be scanned. Libraries are not provided digital copies of books owned by other partnering libraries. In September of 2005, the plaintiffs sued Google alleging copyright infringement due to the scanning of copyrighted books and making them publicly available without permission from the copyright holders. In March of 2011, a proposed settlement was rejected by the Southern District Court in New York, because Judge Chen deemed the settlement to be unfair for various reasons. The United States Court of Appeals for the Second Circuit (which is the court to which this case will be appealed) then directed the Southern District Court of New York to decide the fair use portion of this case before ruling further on class certification, which may now be a moot point. So no doubt, today’s ruling will be appealed back to the Second Circuit. However, today, the order filed by Judge Chen of the Southern District of New York disagreed with the Authors Guild, and held that such copying of twenty million books for specific purposes was fair use.
The court reasoned that the Google books program provided many great social benefits. For example, this project offers an efficient search feature with which individuals may locate books, and groups of books that contain an exact word. Such a feature also provides an efficient tool for data mining, etymological research, syntactic patterns, and bibliographic analytics. Many academicians and students have come to rely on the Google interface to augment interlibrary loan, quickly locating needed sources of information, and locating means with which to purchase them (e.g., Amazon). The court further noted that such reliance on the Google interface has integrated this tool in educational systems and it is now an important facet of information literacy in academia. Also, this project has expanded access to books to underserved populations such as individuals requiring large print, text-to-speech, or Braille conveyances of text. Additionally, the Google books program helps preserve out-of-print and deteriorating works. Lastly, the court even noted that this project benefits publishers and authors by offering links of snippet views that direct readers to Amazon or Barnes & Noble sites where readers may efficiently purchase books.
Fair use analysis
The court’s fair use analysis displays a detailed analysis anyone could use to determine whether their own use of an item is considered fair.
The court examined this project with each factor of fair use as follows:
1. The first factor- What is the purpose and character of use?
The Google books program use is transformative in that it provides comprehensive indices that enable efficient research and finding aids, data mining, text mining, and robust research. Further, the displaying of snippet views is transformative as this project uses words for different purposes than did the copyright holders to direct users to a broader selection of works. The court further noted that even though Google is a commercial entity, which may usually weigh against the first factor of fair use, Google is not selling the scanned copies it makes, or the snippets it displays, and it does not run ads on the snippet pages, thus overall its purpose and character of use strongly weigh in favor of fair use.
2. Nature of copyrighted work –
The works scanned are published, both fiction (7%) and non-fiction (93%). The court notes that the more fiction works that are being scanned, the more this factor weighs against fair use. However, in this case only 7% of the works are fiction, and all of the works are published. Thus, the court held that Google also meets the second factor of fair use.
3. Amount and substantiality of the portion used –
How much of the work is used? Google scanned the entire copy of each book in this collection. Even though Google only provides snippet views of these books and has safety mechanisms in place to prevent a user from completing multiple searches to download enough snippet views to obtain the entire text, the court stated this factor weighed slightly against Google’s fair use. I disagree with this analysis of this factor in that some courts have held that copying entire works can be fair use if it is necessary to copy an entire work to fulfill a transformative purpose. Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006). This court even acknowledged that other courts have agreed that copying the full text of items is not infringing when such copying meets a transformative purpose. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); see also Bill Graham Archives, 448 F.3d at 613 (copying the entirety of a work is sometimes necessary to make a fair use of the image). Nevertheless, this court stated that Google did not meet the third prong of the fair use test.
4. The effect of use on the potential market –
The court noted that Google does not sell its scans or snippet views, and the scans do not replace a sale. The court seems to reference section 108 preservation copies (although it does not specifically reference section 108) when it states libraries are free to keep the scanned copies of books made by Google that the individual library already owns, and further such scanned copies do not replace a sale. The court additionally notes that the Google project actually augments the promotion of books by helping users locate them and leading them to a site such as Amazon where the book may be purchased. Thus, the court held that Google meets the fourth prong of the fair use analysis.
Overall, the court ruled that Google met three of the four prongs of the fair use test. Thus, in all, according to this court, the Google book project is fair use. I think the court should have also held in favor of the third prong as Google could not provide this public service if they do not copy the full-text of each source. However, for now this is another great judicial win for libraries, and for Google. But as I am typing this, the Authors Guild has announced it will appeal. This is not a surprise as the HathiTrust appeal at the appellate court level is still pending. The HathiTrust case is highly related to this case as fair use will be a determining factor in examining many of the augmented technologies using full-text scanned items in the HathiTrust appeal. So, many are claiming this is “the” big case, the big win for libraries. It is a big win for libraries, but this is a district court case. A win at the appellate level for HathiTrust and for Google on appeal will be even bigger, as federal appellate court rulings reach broader than do federal district court holdings. I am not making a prediction of how these appeals will come out, but a win at that level or even at the Supreme Court level (do not be surprised if these get appealed to that level) would be even bigger for libraries. We will stay tuned, but for now, OK yes, this is a pretty big win for fair use and for libraries.