Technology

Case Dismissed: Google’s Scanning of Books is “Fair Use”

Google Books
Written by Cynthia Trinh

In a landmark copyright case, Judge Denny Chin of New York ruled that Google’s scanning of books without permission of the author is fair use, ending the 8-year battle between Google and the Authors Guild.  Judge Chin concluded that Google’s digitization of millions of books is on its face a violation of owners’ copyrights, but because Google’s use is limited and serves a educational purpose, Google is shielded from liability under the principle of fair use.

Google Books is a web-based application that allows a user to search the full text of books and read them online. A user can visit the site and search for a book just like a web search.  If a book is out of copyright, or the publisher has given Google Books permission to use the book, a user will be able to see a preview of the book, in some cases the entire text.  If the book is within the public domain, the user is free to download a PDF copy of the entire book.

Proponents have praised Google Books for vastly increasing access to educational materials and other resources of literary value.  Google contends that it protects copyright holders by making sure that when users find a book under copyright, they only see a card catalog-style entry providing basic information about the book and no more than a few sentences of text surrounding the search term.  Google argued that its goal is to improve access to books, not to replace them. One of the most prominent copyright attorneys in the country, Lawrence Lessig, is a supporter of Google Books and believes that it is one of the best innovations of our century.

Opponents of Google Books contend that a third party should not be able to copy and index copyrighted works, even if all a user sees is the bibliographic information and a few sentences of text.  They believe that Google is merely an attempt to monopolize access, distribution, and pricing of the largest digital database of books in the world.

After an 8-year battle, Judge Chin found in favor of Google. Judge Chin stated that Google Books benefits society by making books more available.  Google’s advanced search engine provides links to where books can be legitimately purchased or to which universities make them available . Judge Chin made very clear the great benefits of Google Books to many different people:

In my view, Google Books provided 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.

Judge Chin determined that Google Books met all four legal factors for a successful fair use defense to copyright infringement:

  1. Purpose and character of the use, including whether such use it of a commercial nature or is for nonprofit educational purposes.  Google does not sell its scans and it does not run advertisements on the pages that contain snippets of information.  True, Google does benefit commercially in the sense that users are drawn to Google’s websites, but there is no direct commercialization of the copyrighted works.
  2. Nature of the copyrighted work. Most of the books on Google Books are published and available to the public.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole. Only books in the public domain or with permission are available in full.  All other works in copyright have only snippets of information that looks like a card catalog entry.
  4. Effect of the use upon the potential market for or value of the copyrighted work. Google Books will enhance book sales because it provides links to where users can legitimately purchase the book they want.

The Authors Guild plans to file an appeal to the decision. Paul Aiken, the Guild’s executive director, believes that Google Books is merely the mass digitization and exploitation of the world’s valuable copyrighted literature and that Google profits from displaying those works.  For now, Google has won the ultimate battle over their popular and widely used Google Books.  It continues to be a great educational tool and resource for many people.

About the author

Cynthia Trinh

Cindy Trinh is an intellectual property attorney based in New York City and Contributor to CreativeArtsAdvocate.com. She is a Creative Relations Agent for the international company Production Paradise, the premiere international resource and online directory for the visual media industry specializing in commercial, advertising, and fashion. She connects the world's best photographers and filmmakers with agencies and magazines around the globe. Cindy is also an Assistant Manager to musician Earl Slick, the guitarist for rock legend David Bowie for the last 40 years. Slick has collaborated with John Lennon, Yoko Ono, The Ramones, The Rolling Stones, and Robert Smith, and was the guitarist for New York Dolls, to name just a few. Cindy is passionate about photography and is heavily involved in New York's art scene. She is the Social Media & Marketing Coordinator for The New York Photo Review, a publication of critical reviews and listings of fine art photography shows in New York. She curates content and photography for all the social media sites, writes about the latest developments in art and photography, and attends gallery openings and events to cultivate relationships with galleries and artists.

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