Is Google’s book scanning practice “transformative”? Google argues that it is, the Authors Guild argues that it isn’t, This could be an important part of determining whether Google scanning all those books in violation of copyright could be considered a “fair use.” It follows on the heels of the appeals court decision back in July requiring that the circuit court rule on whether Google Book Search constituted fair use before deciding if the suit warranted class action status.

Google argues that its book search program was such an improvement over existing search functionality for books that its use was transformative. The Authors Guild, on the other hand, complains that “[The] only thing ‘transformative’ about Google’s display of snippets of in-print books is that it transforms online browsers of book retailers to online users of Google’s search engine.”

It’s also worth noting, again, that one of the members of the appeals court who requested the fair use ruling wrote the law journal article that defined “transformative use.” Brown-nose much, Google?

Quoting from that blog entry about transformative use:

If, on the other hand, the secondary use adds value to the original — if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings — this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

It seems like a pretty open-and-shut case in Google’s favor there. Before Google did its renegade scanning, there was no search index that could search inside books the way it can—because nobody had ever done such a widespread book digitization project before. (Because they knew the copyright owners would sue them. Funny how that works.) With all that data, you can do some pretty remarkable things that add a lot of value. But you have to make the copies in order to get that data.

The fundamental issue here is that, no matter how beneficial Google’s book search might be for the authors of its books—leading to additional sales as people find the books they’re looking for in ways they never could before—the Authors Guild sees Google making money off of their authors’ books by flaunting those laws that say the works can’t be copied without permission.

It’s sort of the Reese’s Peanut Butter Cup effect of the e-book world. “You’re making money from having our books in your search engine!” “You’re making money from our search engine indexing your books!” “You should be paying us for ripping off our work!” “No, you should be paying us for promoting your work!” (See also, the Time/Warner dispute with CBS in which each side thinks it’s benefiting the other more than the other is giving it in their deal.)

Anyway, this squabble has being going on for longer than I’ve been writing for TeleRead. If Google prevails in the fair use question, it could change the whole nature of the case.