Google makes case for Google Books scanning as ‘transformative’ fair use

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.

14 Comments on Google makes case for Google Books scanning as ‘transformative’ fair use

  1. I am rooting for Google on this one.

    And I would love some movement, eventually, on so-called “orphaned” works where the author is dead; the works are “abandoned”; and scans can be shared. I’d be happy if there was some nominal charge provided the funds went to something resembling a starving writer’s fund.

  2. Google scanned extant paper books. Although I, too, hope that they are successful, I also have to wonder what happens when Google seeks to include digital books as they surely and eventually will. Many of those works will be encumbered with DRM and the DMCA may well still be law.
    So, let’s assume that this scanning and indexing is found to be a fair use. Is it only fair with paper and not with digital?

  3. The article ignores the major issue: it is settled law that the rights owner has the right to decide on uses of the copyrighted work. If the owner thinks having his book copied by Google is good for him, he has the right to allow it. However, it is dishonest in the extreme for Google to steal millions of books and then claim the theft is justified because it benefits the victim. That is for the author to decide, not Google. Let us hope that the courts are honest enough to see through Google’s self-serving arguments.

  4. @David, you may want to bone up on the concept of fair use (see: http://en.wikipedia.org/wiki/Fair_use), at least as it applies in the US and elsewhere (aka Fair Dealing). Governments grant a conditional, time-limited monopoly to authors (copyright). Copyright is not an inherent right nor is it absolute.
    In terms of the US, the constitutionally defined purpose of copyright is to advance science (knowledge or learning in 21st century parlance). This allows a number of fair uses such as for education, parody, criticism, etc. No author permissions required.
    Of course it remains to be seen whether Google’s scanning and indexing is an instance of fair use in the court’s opinion.

  5. David, it’s also settled law that the courts can decide a copyright violation is a Fair Use, which is to say, permitted by the government, if it meets certain criteria. One of those criteria is that the use is sufficiently different from the copied work’s intended purpose–which is to say, sufficiently “transformative”–that it does not threaten the market for the original work.

  6. This is basically ‘format shifting’. Which is legal under some circumstances. Does that really count as ‘Fair use’ ?

  7. Sanford Thatcher // August 29, 2013 at 3:57 pm //

    The quote from Leval’s article is precisely what shows that Google’s activity was NOT fair use. Show me how the application of a computer algorithm, involving no human creativity in its application, creates “new information, new aesthetics, new insights and understandings.” It does no such thing. The only thing happening here is the use of the copyrighted works for a different purpose. The Ninth Circuit has accepted re-purposing alone as the criterion for “transformative use.” The Supreme Court, in its 1994 landmark Campbell decision, did not, but rather followed Leval’s lead. Every decision in the Second Circuit so far, except the very recent one by a district court judge in the HathiTrust case, has followed the Supreme Court’s approach. Since the Google case is being decided in the Second, not the Ninth, Circuit, this is hardly a slam dunk for Google. Ninth Circuit decisions in copyright-related cases have, more often then not, been overturned on appeal by the Supreme Court.

  8. I’d say that an Internet user being able to go and learn, “you can find this search term inside books X, Y, Z, etc.” when there would have been no possible way for him to find that out before is the very definition of “new information, insights, or understandings”. The ability for a person to do that was created out of nowhere by Google scanning and indexing these works.

  9. Sanford Thatcher // August 30, 2013 at 8:58 am //

    But the enhancement of such ability is not the act itself, and it is that act which is “fair use” or not. Photocopying enhanced the ability of Texaco researchers to do their jobs better, too, but the judge in that case found the copying not to be fair use–and that decision, in 1995, was made in the Second Circuit. The judge said that, whatever social utility was provided by photocopying, it had nothing to do with what fair use was traditionally all about. That decision is precedent in the Second Circuit.

  10. There is no doubt that Google’s claim is novel but the benefit to society as Chris Meadows pointed out, is probably substantial with very little harm done, if any, to authors and publishers. Indeed, one could reasonably argue that publishers and authors will likely benefit.
    However, there is more to this debate than meets the eye.
    There are a number of ‘gray eminences’ lurking in the background. Their interest is in the monetization of data mining. As with so many other things, they will have a hard time charging money for that kind of thing if Google is allowed to offer it for free or for cheap.
    We have merely scratched the surface of data mining or ‘big data.’ Here’s a small, early example – solving the question of authorship in the Federalist Papers (http://pages.cs.wisc.edu/~gfung/federalist.pdf)
    The value of knowledge and information gained in this way is likely to be great. Imagine the questions that could be asked and answered if we could examine every word in every romance novel published in the last 100 years. What great insights would come of being able to examine every book in English or Spanish or whatever?
    “There’s gold in them thar hills,” said the wily data prospector/publisher as he rubbed his hands in greedy anticipation.

  11. Sanford Thatcher // August 30, 2013 at 2:33 pm //

    It’s not the social utility of Google’s scanning project that I am questioning. It’s whether fair use is the appropriate defense for it. Remember that Judge Newman in the Texaco case recognized the social utility of photocopying by researchers, but nevertheless found it not to be fair use. We are talking about the coherence of a legal concept here. My claim is that the concept becomes more vague and useless the more it is extended to cover uses that depart from what we traditionally knew as fair use. Google might better have approached Congress to ask for legislation that would have added an exception for mass digitization to the copyright act, rather than trying to pass it off as fair use.

  12. As Lawrence Lessig summarizes the relevant history:

    o Creativity and innovation always builds on the past.

    o The past always tries to control the creativity that builds upon it.

    o Free societies enable the future by limiting this power of the past.

    o Ours is less and less a free society.

    As with language itself which evolves with use in changing circumstances, law must also evolve. The doctrine of Fair Use has never been entirely clear and that may be its greatest strength. As those who take the view, “what’s mine is mine and what’s yours is negotiable” conceive of ever more clever ways to stifle creativity in order to continue enriching themselves, the fair use doctrine is society’s only effective defense. Fair Use limits the power of the past and that is generally a good thing.

  13. “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.”

    Nothing before Google? Hardly. Back in the early eighties I was digitizing relevant quotes from books and using them, with tags, in a search app. I’ve still got the files.

    Your argument really hinges not on the newness but on the scale of what Google did. Steal a little, it’s a crime. Steal a lot and it’s fair use. Fair use law says precisely the opposite. The more you take, the more likely it is a crime. Taking all is always a crime.

    Most important of all, you’re also missing the entire point of “transformative.” It hinges on things like the “new insights and understandings” of that quote. It is utterly impossible for mechanized OCR software to do that. It simply turns printed text into digital text. Commentary and criticism which quote the original offer insights. A mindless search engine can never do that. It never has insights and understandings. Indeed the entire point of Google’s project was to make it as mindless and cheap as possible.

    And I might add that it matters not that someone might use Google’s texts to do that. It’s Google’s crimes we are discussing here. We’re not accusing college professors.

    Also, keep in that that even extremely transformative uses of a book are often covered by copyright. It’d be quite easy to take a popular book and create a movie from it that never uses a single line from the book and that makes major alternations in the plot. A heck of a lot of transforming would be going on, far more than a mindless OCRing, but the book is still protected by copyright.

    That’s why a far better case can be made that what Google has tried to do is a derivative in the same sense that an abridgment or a movie based on a book is a copyright-protected derivative. Since copyright is mostly about money, that makes sense. A searchable text is something people are willing to pay for.

    I know. I bought an ebook version of The Lord of the Rings for that very reason. If Google is able to offer it for free, the Tolkien estate would be getting cheated.

  14. Leigh-Anne Ames, Author // September 4, 2013 at 12:03 pm //

    Hey, guys:

    Let’s take a look at the operative word in all of this– Fair. I come from the legal field (Federal; Privacy Laws, but still) and to be fair to the author, whether living or deceased, Google has no right to offer something that is not theirs for free; hence, a proper, nominal fee should be in place for authors, remaining relatives (Possibly), Google, and any other parties involved, so that all may benefit. Just a thought; this isn’t rocket science.

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