Authors Guild v. Google: Is Fair Use Fair?

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On November 14, 2013, U.S. Circuit Court judge Denny Chin (sitting by designation in the U.S. district court for the southern district of New York) concluded 8 years of copyright infringement litigation with an order dramatically expanding the “fair use” defense. Seemingly somewhat out-of-sync with the Napster decision a few years ago, the order permits Google to continue to freely copy the entire contents of millions of copyright-protected books and distribute them, or at least significant portions of them, to the public free of charge, without either getting permission from the authors or paying them royalties for their works.

The Google Books project may well be the greatest boon to researchers there has ever been. In the old days, you would need to make a lot of telephone calls and perhaps drive a long distance to a library to track down, say, an exact quotation from a particular nineteenth century physics textbook. With Google, you simply type the name of the text and a few key words into a search bar, and within seconds a link to a copy of the page of the book on which the quotation you seek appears on your screen. Follow the link and the quotation, along with a considerable amount of additional text from the book, instantly appears on your screen. It is a researcher’s dream come true. But what about the rights of authors? Is it fair to them to allow people to read unauthorized copies of their books without having to pay for them? Certainly there can be no  complaint about works that are so old as to have entered the public domain. But what about books that are still protected by copyright?

The Copyright Act prohibits the reproduction of copyright protected books. 17 U.S.C. § 106(1) (2013). It also prohibits the distribution of books that are protected by copyright.  17 U.S.C. § 106(3) (2013). And it prohibits the unauthorized display of protected works. 17 U.S.C. § 106(5) (2013). As part of its “Library Project,” Google digitally scanned millions of books in the Library of Congress, the New York Public Library and several university libraries, and then made them available to the public to view and download for free. Not having obtained permission from the authors and publishers of these books, Google committed millions of violations of each of these laws. The upshot was a class action copyright infringement lawsuit by the Authors Guild on behalf of book authors everywhere.

After more than eight years of litigation, a U.S. district court judge determined that Google had indeed infringed the copyrights of scores of books authors, but refused to hold the company liable for it. Instead, the judge ruled that the massive copying and distribution program upon which Google had embarked came within the “fair use” defense to copyright infringement.

The “fair use” doctrine permits limited use of copyrighted works under some circumstances, in the interest of fostering the development of arts and science.  Because of it, no permission is needed to copy small amounts of  a book for the purpose of criticism, comment, news reporting, teaching, scholarship or research. What Google did went far beyond that, though. Google’s activities involved copying, distributing, and in some cases displaying the entire contents of copyright protected books without permission.

The company was able to secure a favorable ruling by invoking the four-prong “fair use” test set out in the Copyright Act. Under 17 U.S.C. § 107 (2013), an infringing use of copyright protected work is permitted “fair use” if the following factors, on balance, favor unauthorized use of the work:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The judge found that, on balance, the factors weighed in favor of Google’s massive copying and distribution project. He emphasized the great benefit to the public of having access to a large number of works all at the same time. He rejected the authors’ argument that Google’s scans serve as a market replacement for the books, depriving authors of payment for their work. “Google does not sell its scans,” he noted.

Of course, this ignores the fact that the purpose of copyright is not simply to prevent others from profiting, but to ensure authors a fair return for their labor. According to the judge, though, Google Books actually helps authors sell their books because “patrons use Google Books to identify books to purchase.”

Do people really use Google search to locate nonfiction books to buy? Or do they only read so much of the text as they want or need at that particular moment, thereby alleviating the need to buy the whole book? And does having all the text of a book available for free online remove, or at least decrease, the incentive for libraries to acquire copies for the use of their patrons?

Well, but the judge has this to say:

“[Google Books] 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.”

Creating a searchable index of books clearly is a transformative use. As such, it should easily fall squarely within the “fair use” doctrine. Had Google simply created an index that displayed a list of books in which the search terms appear, without displaying the actual text of these books, there would be no question that the creation of the indexing system would have been a fair use. Enabling users to also read entire pages from the books — and in some cases, the entire book — after identifying and locating them, without anybody having to actually pay anything for a copy of the book is a different story.

Predictably, librarians, Internet surfers and Google officials are thrilled with the decision. Authors, not so much. An appeal is almost certain, although all indications are that the Second Circuit probably will affirm the decision.

You can read a copy of Judge Chin’s ruling here:

http://publishersweekly.com/binary-data/ARTICLE_ATTACHMENT/file/000/001/1887-2.pdf

 

6 thoughts on “Authors Guild v. Google: Is Fair Use Fair?

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  2. As an author, I can support the access to my books but only with a limited capability.

    For instance, I have three books available on Amazon.com in print as well as e-book format. Those who go to amazon are allowed and capable of reading ONLY an excerpt or the intro into each one of my books. That is fine with me since it is there from promotional purpose. However, If my book is allowed to be copied and/or distributed in any format other than what I choose to be public, then it takes the control out of my hands; I then will become a very unhappy camper. The books I have written are for a purpose. That purpose, is for the enjoyment of the purchaser as well as is to provide me the ability to create an income to help supplement my financial needs to survive. If they are going to infringe on my copyright and allow the public to have access to my entire book, then, my purpose has been violated and is unconstitutional. For this reason, millions of people who write their books may just as well write them and give them away. There are times when I think the internet and Web servers like Google take way too much self allowed privilege upon themselves. They are mocking us when they dress up their illegal actions and twist the facts into sounding like “It is for research use only.” Folks, no matter how you look at it if this activity is allowed to continue, the Authors, who are still alive and writing their books should remain in full control of what gets published and what does not. We should always remain in control of how much of our text is being made available to the public. For this specific reason, I choose NOT to make my books available for people to LOAN to a friend even for 1 day. If you want your friend to read my book, THEN BUY IT FOR THEM. If through all of this legal “mumbo jumbo,” I have read correctly, then we are at the mercy of a handful of thieves.

    Author Lester W. Van Huss

    • One way the court justified the result was by saying that the kind of work that Google indexed was nonfiction, and that nonfiction is entitled to very little copyright protection as compared to more “creative” works like fiction and poetry.

      I have published both nonfiction and poetry. I decided to see what would happen if I searched for a poem that has only ever appeared in the book I published. I went to Google’s search page and typed in the title of the poem. A link to books.google.com/ appeared in the search results. I followed the link and, just as I suspected, it took me to a page on which the entire text of my poem appeared. Scrolling up, I discovered that only did that poem appear, but the full text of 22 other poems in the book did, too!

      Of course, poetry usually doesn’t command much, if any, payment anyway. But what if the 22 pages had been a short story in which an online magazine might have been interested in acquiring serial, reprint or exclusive digital rights? How much is a publisher going to be willing to pay, knowing he could simply publish a link to a free copy of it without having to pay anything at all to the author?

      It is a very disturbing ruling for a lot of reasons.

      While an appeal is pending, I think writers need to begin a discussion of ways we can protect the fruits of our labors in light of this ruling — if that is even possible.

  3. I hadn’t heard about this ruling – evidently I’ve been living under a rock.

    I can’t see how this isn’t a copyright infringement. I often get samples from books on my Kindle to decide if I really want to buy them but this is a totally different scenario. It allows someone to read the part of the book that fits their specific needs and not have to buy the book at all.

    I guess the royalty provision doesn’t apply to print like it does to musical lyrics?

    • The court justified its ruling, in part, by asserting that nonfiction is not entitled to as much copyright protection as more creative works are. To satisfy myself that my creative works were still protected, I went to books.google.com and typed in the title of a poem that only appears in a book of my poems that was published a few years ago, all rights to which I have retained. To my horror (well, okay, “horror” might be too strong, but something like horror, anyway), not only did the title of the poem appear, but the entire text of the poem did, too. Not only that, but 22 other poems from my book appeared on the screen, as well. Granted, it’s not likely anyone would pay anything for my poems, but what if those 22 pages had been a short story for which I had hoped to sell serial, reprint or digital rights?

      While an appeal is pending, I think we writers need to begin a discussion about finding new ways we can protect the fruits of our labors — if that is even possible now.

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