Google Books v. Authors: Is “Fair Use” Fair?

April 25, 2016

As an information addict who grew up without the internet, the public library used to be my internet. During high school in the early 90s, I became interested in all kinds of 70s and 80s alternative/punk bands that I saw referenced in Rolling Stone and Spin, but the only way I could find out more about them was to go to the marvelous Westerville Public Library and look them up in card catalogues and on old microfiches. I did other kinds of research at the library, of course, but that’s where I learned about the Ramones, the Replacements, and all my other favorites (I had to make them my favorites to justify all that work!). Today, all a kid has to do is type in a few keystrokes to wikipedia and youtube and she has more information than I could gather about those bands in all of 1993.

With that level of ease of access, it can be easy to operate under the implicit assumption that everything worth knowing is freely available on the internet, and there’s no real day-to-day necessity for libraries and books. But, if you work in a research heavy field such as law, journalism, medicine, and so on, you know that there is a limit to the internet’s free informational resources, and that we still rely heavily on books and the authors and publishers who create them to fill the wide gaps left out by the internet. Which is the gap stepped into years ago by Google Books.

Some of those authors worried that Google Books – a massive worldwide project to digitize as many books as possible – was undercutting that reliance and putting them out of business by offering their writing for free to anyone with an internet connection. The Authors Guild and several individual authors sued Google for copyright infringement, but lost their battle in the Second Circuit last year. And then just this past week, the Supreme Court denied the Author’s Guild petition for review of that decision, effectively ending their fight and leaving Google Books the victor.

So is this yet another example of the “sharing economy” where individual creators such as authors are expected to work for free while a huge global titan like Google makes off all with the cash?

Or is making books (or at least portions thereof) freely available to anyone who wants them something much more benign and even socially beneficial, despite the authors’ claims to the contrary?

And, most importantly, how is this all legal?

What Exactly Does Google Books Do?

Google Books was a project started in 2004 when Google made agreements with various libraries to digitally scan their collections: Google would get to use the scanned versions of the books in its search engines, and, in return, the libraries would have access to electronic copies of all of their books.

If a book is in the public domain – generally meaning it was published before 1923 or without copyright protection – then Google Books will publish the book in full. For copyrighted books, Google will publish “snippets” of the book, meaning assorted pages, but only up to a certain limit. If you search Google Books for Jeffrey Toobin’s “The Run of His Life: The People v. O.J. Simpson,” you’ll see a smattering of 40-odd pages from the book. Enough to give you a general sense of the book, and perhaps a specific bit of information that you are looking for, but far less than the entire book. Note that, at the top left of your screen on the Google Books version of “The Run of His Life” is a button to purchase a full Google Play e-version of the book for $11.99, and, of course, in purchasing the book, the publisher and author would get their agreed upon share.

Google claims that its goal is not to “become a substitute for the printed word,” arguing instead that, “our goal is to improve access to books – not to replace them.

The Authors Make Their Argument

The Authors’ Guild and others don’t see eye-to-eye with Google on its project, to put it mildly. Instead of a project to improve access to books, the plaintiffs petitioning the Supreme Court called Google Books “a highly profitable system” constituting “copyright infringement on an epic scale.

The plaintiff’s essential argument is that Google Books violates copyright law by not constituting “fair use,” which is the allowable use of copyrighted material under federal law. While fair use has long been a concept in American copyright law, it was only in 1976 that Congress codified the following four factors to be weighed by courts in determining whether an unauthorized use of information constitutes fair use:

  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 plaintiff’s primary argument was with regard to the first factor – the purpose and character of the use – with the contention that by simply “copying” selected pages, there was no “transformative use” of the material as was required by the Supreme Court’s earlier precedence in Campbell v. Acuff-Rose. In that 1994 case involving the rap group 2 Live Crew’s use of anuathorized music samples, the court held that when a party makes transformative use of copyrighted material by, in essence, making it their own, this weighs in favor of fair use (see an extended discussion of transformative use in my earlier post on Lindsey Lohan’s lawsuit against Rockstar Games).

In addition to the no transformative use argument, the plaintiffs also argued that Google’s alleged commercial profit denied them the ability to claim fair use, and that digitization of work unfairly made it susceptible to hackers.

The Second Circuit Sides With Google

Google was successful in countering these arguments before the Second Circuit, which found that Google Books’ digitization of indiviual works did in fact constitute a transformative use, holding:

Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.”

The Second Circuit also did not find that Google’s profits on Google Books was significant enough to deny the company fair use protection, nor did the project unreasonably expose authors to devaluation of their works through theft and other means.

In finding that there was transformative use, the court described at length the complex technologies Google uses in connecting text and concepts across books and time (i.e. Google’s downright nifty “ngram” feature which charts the rise and fall of phrases like “Burmese Government” over the past few centuries), their argument being that Google Books was doing far more with the books than simply copying pages and dispaying them online.

With the Supreme Court’s refusal to hear the authors’ appeal, the Second Circuit decision stands as the final word on the legality of Google Books for now.

What Does Google’s Win Mean for the Future of Publishing?

One important aspect of Google Books is that Google will not keep portions of a book up on its site if the publisher requests that the book be removed, and a publisher can pre-emptively provide Google with a list of books that it would not want included at all on Google Books.  Of course, this means that authors have to opt-out of having portions of their book displayed online, so it cannot be said that – at least as of now – that Google Books is giving away any content against an author’s stated will. That said, if an author wrote a book about surfing Lake Michigan, and there are already five books about surfing Lake Michigan on Google Books for “free,” the author might feel forced to put his book on Google Books (note: I could only find one book on surfing Lake Michigan anywhere), undercutting the argument that the author has a choice in the matter.

In general, publishing industry analysts are far more interested in questions related to the growing popularity of full, for-sale e-books than they are about whether someone can access 30 random pages from a book on Google Books which can be removed at any time by the publisher. The rise of the e-book is actually one of the best things that could ever happen to book writers as a general population, giving them the right to bypass publishers completely and offer their books at budget prices while keeping a lion’s share of profits.

Along with self-publishing, a seemingly bigger concern for publishers than Google Books are startupslike Scribd and Oyster, which offer ebooks on a subscription model not unlike what Netflix or Spotify did for movies and music, respectively (and as a recent convert to Scribd, I can tell you, there’s no going back…).

Is Google Books Good for Business?

In my own work, Google Books has been invaluable at times in quickly finding information that would have been available nowhere else for free on the internet, saving me countless hours of research which would have required hours of visiting a library, and which would likely not have had the legal or other book I needed in circulation. And in some instances, the information I found led me to purchase the entire book online through Amazon. Had I not had Google Books, I would likely not have ever found the information at all, given that most of the time the information was not worth the library visit, so it is not as if a publisher was deprived of money that I would have spent.

When I was working at well-resourced law firm for many years – in fact the same law firm that successfully represented Google before the Second Circuit – I had incredible resources available to me at all times in the form of an onsite law library, vast subscription-based legal databases, librarians and Westlaw/Lexis available 24/7 for support, and so on. It will be a long time before Google Books is all that, but in the meantime, for those involved in the business of discovering, synthesizing, and conveying information about the world, it’s one of the best free resources a freelancer or business can have.

 

Jeremy Masys

By

Jeremy Masys is a writer, attorney, and musician living in Los Angeles. He earned his JD at New York University School of Law and attended USC's School of Cinematic Arts as an Annenberg Fellow. Jeremy has practiced white collar defense law in New York and Los Angeles.

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