Google winning books war as latest court ruling backs internet giant

When Google set out to scan all of the world’s books into its digital database using optical character recognition, no one foresaw the monumental challenge that lay ahead of the internet giant. In partnership with several institutions of higher learning around the world, the project has now scanned in excess of 30 million books.

For those books already in the public domain, the entire content was made available and ready for download. For those where the author has granted permission, the number of viewable pages is limited to a ‘preview’ set by a variety of access restrictions and security measures, some based on user-tracking.

The District Court ruling has been applauded by law professors and pundits around the US, while technology columnist at the Washington Post Timothy B Lee stated that the ruling was a “decisive win for online innovation”.

Judge Denny Chin ruled that the projects had substantial public benefit and fell within the exceptions or defences to acts of copyright infringement under American law. When the project started, Google quickly realised that it would be a logistical nightmare to contact or even identify the copyright holder.

Publishers would want exorbitant fees before they could scan, probably halting the project before it had even started. In an ambitious move, Google began scanning without seeking the permission of the copyright holder, relying on fair use.

Fair use rulings focus on four factors; the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Of these, the most important is whether the use of the work is "transformative", which falls under the purpose and character of the use. If a work is transformative rather than derivative, then one may be able to rely on fair use as a defence to infringement. Chin said that Google Books easily passes this test:

"Google Books digitises books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books does not supersede or supplant books because it is not a tool to be used to read books."

Part of the Authors Guild argument was that Google allowed people to assemble copies of entire books from the short “snippets” Google does make available. Chin rejected this argument on the grounds that Google actually expands the market by helping people discover books they didn’t know existed.

Because works are now digitised Chin recognised that there are significant public benefits and added some new case law to the small and developing area of search engine law. As the court eloquently states in its ruling (Which can be read in its entirety here): “In my view, Google Books provides significant public benefits. It 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.

"It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. 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."

The Authors Guild seems not yet ready to give up with reports indicating that they plan on appealing the decision just as it did after the two earlier rulings last year.

However, Judge Chin, who sits on the Second District Court of Appeal, seems to have given firm backing to the reasoning presented in a brief filed by the Library Copyright Alliance which claimed that the digitisation of books had significant public benefits, including for members of society that suffered from disabilities and could not access traditional libraries.

The Association of Research Libraries sent a firm shot across the bow of the Authors’ Guild: “It is time for the Authors Guild and other rights-holders to wise up and focus their energies on more productive pursuits. Years and years of litigation, millions in legal fees, and what have they got to show for it?”

“There is no pot of gold at the end of these lawsuits, and the research tools they’re trying to kill are their best hope of finding an audience.”