Juli already mentioned the big news of the day: Google has prevailed in the Authors Guild’s copyright case against it for scanning millions of books for its Google Books project. Judge Chin determined that Google Books constituted a fair use, granted Google’s motion for a summary judgment, and dismissed the case. But let’s look at the background a little.

This ruling comes a few months after an appeals court ruled back at the beginning of July that Judge Chin needed to hold up on deciding whether the Authors Guild could claim class action status and look at the fair use question first—since, after all, if it was fair use, everything else in the case was moot. The appeals court in question is actually the same court Chin himself sits on (he’s got the Google case still on his docket as a holdover from when he sat on the lower court), and one of the judges on that court basically defined “transformative use” as a fair use defense.

Chin has, of course, been with this case since the beginning, in 2005. He presided over it during the Authors Guild’s awkward attempt at a settlement, which he eventually rejected for giving too much away. The Authors Guild pressed for class-action status, so that they could sue on behalf of all the US’s authors rather than those authors having to sue individually. The judge granted the request, but Google appealed. It was in response to that appeal that the appeals court issued that ruling directing the judge to decide on the fair use question first.

Judge Chin’s 28-page opinion can be read here (PDF), and outlines his reasoning in detail. Publishers Weekly and Ars Technica also have excellent coverage. In summary, Chin found that three of the factors (purpose of the use, nature of the work, effect on the marketplace) weighed strongly toward fair use, and one (amount used) weighed only slightly against. On balance, Google Books is fair use, case dismissed. (Though why the judge couldn’t have seen that when Google first asked for it a year ago, instead of having to be told by the appeals court to take a look, is a mystery to me.)

Chin also points to a separate but related case, the Authors Guild’s suit against HathiTrust, the organization of libraries who gave Google the books to scan. The judge in that case also found it to be fair use and threw the case out in October, 2012.

This has all got to come as a huge relief for Judge Chin, who has had this case hanging like an albatross around his neck for almost 9 years now. He must be ecstatic to know that, unless the appeals court sends the decision back down to him on appeal for some clarification, the Google Books case shouldn’t have to darken his door again. For those of us who have long been following the case, it’s akin to the infamously-delayed video game Duke Nukem Forever finally getting released. But hopefully the results of this case will not be as disappointing as DNF was.

That being said, it’s not completely over yet. The Authors Guild is certain to appeal (though whether they’ll have much luck with the very same appeals court that prompted Chin to issue this decision is rather dubious in my opinion). That same appeals court is getting ready to rule on the HathiTrust case, which will thus act as a bellwether for how this similar case is likely to be decided. And the issues in both cases are novel enough that they could go all the way to the Supreme Court.

If the fair use rulings stand, it will set a powerful precedent for fair use in book scanning, which could allow other projects to proceed—including those by smaller companies not as able as Google to fight the matter out in court. In this way, the Authors Guild could actually have weakened its own copyright protection by bringing suit (much as Righthaven did with newspaper copyrights).

Authors Guild Executive Director Paul Aiken is unhappy about this, of course.

"Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works," said Aiken. "In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense."

In other words, nobody should be allowed to make any money from anything to do with their books except them. Never mind the transformative nature of the use, or how much more useful it makes their work to everyone, or how much easier it makes it for more people to find (and hence buy) their books. They’re supposed to be making all the money. I doubt this dog-in-the-manger approach will find much favor with the higher courts.

The thing about fair use is that it makes even egregious copyright violations okay, if they’re found to be in keeping with the reason copyright was invented to begin with—not to protect authors’ and publishers’ right to make money, but “to promote the progress of science and the useful arts.” Letting authors and publishers make money is seen as the best way to do that in general, but there are exceptions and those exceptions are why fair use exists. It seems many of today’s authors and publishers have forgotten that.


The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail newteleread@gmail.com.