Nearly ten years after it began and eight years after Google was sued over it, Google’s program that scans books in order to make them searchable has been found legal. A judge found fair use, especially in that “Google Books does not supersede or supplant books because it is not a tool to be used to read books.”
The ruling by Judge Denny Chin found that the Authors Guild’s claims that Google was massively infringing the copyright of books didn’t hold up. Below, some of the key highlights from his ruling.
The Background & Permission Needed To Scan?
Most of the ruling covers the background of how Google Books works and the allegations in the case. It starts covering the two programs Google uses to gather books for Google Books:
Partner Program: First is the the Partner Program, which started in December 2003. The ruling says 2004, probably a reference to when the program came out of beta and opened more widely to publishers. Books scanned through the partner program haven’t really been an issue because publishers or authors themselves have actively given permission for their works to be used in Google Books. From the ruling, about 2.5 million books have been scanned this way.
Library Program: With the Library Program, which began in December 2004, Google began scanning books provided by various major libraries. To date, the ruling says Google has scanned over 20 million books, in this method. Unlike the partner program, Google didn’t have express permission to scan these books. From the ruling:
That’s the core of this entire case. While Google didn’t get permission to scan these books, did it actually need that permission — or was its scanning covered under fair use laws?
Display Of Snippets, Not “Full View” Books
Despite what you may have heard, Google Books does not — and never did, to my knowledge — display the full text of any book that it scanned without having express permission to do so from a publisher, author or other rights-holder. Google also has “full view” copies of books for those that are clearly out of copyright.
For other books, those in copyright and obtained through the Library Program, Google will show “snippets,” short passages that match the words someone searched for within Google Books. Here’s how it looks when I did a search for words I knew would bring up a passage from “Ball Four,” one of the three books cited in the copyright infringement case against Google:
Clicking on the Ball Four link brings me to a page at Google Books showing the actual scan of that passage:
The entire text of the book isn’t shown. In fact, the publishers can even block snippets from being shown by asking that Google remove their books entirely from Google Books.
Reading Snippets Is Not Reading A Book
Could someone use the ability to view many snippets as a way of reading an entire book, or reading just the important stuff they want to avoid buying a book — especially in cases of “short text” works like recipe books? The judge didn’t buy this argument, spending time discussing Google’s security measures designed to prevent this:
Google Books As A Public Benefit
Next, the judge went on to highlight five main benefits of Google Books:
- Easy way to find books & research information
- Helps with data mining about language trends and changes
- Expands access to books
- Preserves old and out-of-print books
- Helps authors and publishers gain audience and income
A few passages about some of these benefits. Here’s one about the research importance:
Here’s one on book preservation:
Google Books Brings New Audiences & Income To Rights-Holders
The benefits section wraps up with this key passage:
Here’s how those links look, by the way:
Yes, Scanning Is Fair Use
After some further discussion of the history of the case, which was restarted after a proposed settlement fell-through in 2011, the judge explains that that when it comes to whether the book scanning is fair use, he finds that it is:
Google Books Is Transformative
One of four factors the judge says in determining if something is fair use is whether copyrighted material has been transformed into something unique, in a way that adds value to the original without replacing it. On this, Judge Chin is convinced. He notes that Google Books uses the book content to make a book discovery and research tool:
The section on transformation goes on to say that just because Google is a for-profit service, that doesn’t outweigh the ability for fair use to apply. Transformation is also seen as a factor “strongly” in favor of a fair use finding.
Google Books Is Not A Book-Reading Service
One passage in the transformation section seemed so key to me that I’m bolding it below:
I’ve written about Google’s book scanning efforts, and the cases against it, from the very start. Over the years, it is extremely common to find those who oppose it to suggest things that are simply not true, chiefly that Google makes copies of books and puts them online for anyone to read.
Except where it has clear permission, Google doesn’t do this. And the judge seems to fully understand that copying books so that people can research what’s within a broad collection is not the same as somehow publishing a digital library that anyone can read.
Amount Used “Slightly Against” Google
Discussion goes on to the second factor, the nature of the works involved — fiction, non-fiction, out-of-print, and the judge says briefly that since the majority are non-fiction, that weighs in Google’s favor — and that the parties in the case further agree that this point “plays little role” in determining fair use, regardless.
Rather, the real focus is on the “amount and substantiality of the portion used” from the copyrighted works. Here, it might be seen as a slam-dunk that Google is copying entire books, so therefore, it must be guilty. But the court notes such copying may be allowed, citing some other cases and noting that the copying is “critical” for Google Books to work:
The judge also notes that Google limits what can be shown. Overall, Google is found weaker in this area, but not so weak that it trumps over the other tests:
Reasonable People Would Conclude Google Books Helps Sales
The final factor of fair use is whether the new use of works will have a negative effect on the originals. In other words, if Google Books has scanned all these books, does that mean no one will buy them? The judge doesn’t believe so:
He goes on to explain how difficult it would be for someone to use Google Books as a means to actually read a book:
In conclusion, he thinks anyone who is “reasonable” would find Google Books actually helps sales:
“No Doubt But That Google Books Improves Books Sales”
The judge concludes with strong statement that there’s no doubt that Google Books helps the sales of books, leading him to find on this fourth point in favor of fair use:
The Broader Implication: Search Engines Are Safe, Too
The ruling provides a sum-up of what was previously said but doesn’t really add more other than to grant summary judgement in Google’s favor. The Authors Guild can appeal and has posted to its site that it will.
The ruling also provides, if upheld, an important precedent for Google’s “scanning” of the web. Because that’s what search engines like Google and Bing do, make copies of pages from across the web in a similar manner to how Google copied books.
There have been a few minor cases against web indexing over the years, but no one has seriously challenged a search engine from indexing documents, primarily in my view because it’s easy for rights-holders to opt-out and because they don’t, wanting the traffic.
But should such a case happen in the future, the Google Books ruling will be instrumental in any court fight.
For more about the case, see additional coverage at Techmeme. Jeff John Roberts has a nice write-up at GigaOm with some reaction tweets, and he’s made a copy of the case availble here:
Google Books ruling on fair use.pdf by jeff_roberts881
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