ARL Policy Notes
What the Google Books Decision Said About Fair Use

As pundits and participants weigh in on the meaning of Judge Chin’s rejection of the Google Books settlement, it is important that one thing remain crystal clear: Judge Chin did not rule on the issue at the heart of the original dispute, whether it was a fair use to scan in-copyright books to facilitate search and to display snippets from those books in search results. That question remains wide open.

The basic argument that the book search project is fair use is straightforward, and has been laid out in its broad outline here (see page 4 of the PDF) by Jonathan Band. In brief, Google Book Search is highly transformative; it creates an entirely novel and unique resource, similar to an Internet search engine, of incredible cultural value over and above the books it scans. Indeed, it adds value to the books it scans in the same way being visible to Google web search adds value to websites. Hence, the effect on the market is likely to be positive because making books find-able in an intuitive Google interface will make it more likely that people will buy those books, not less. And, as Matthew Sag has pointed out (see page 34 of this PDF), there is a market failure here insofar as Google could never negotiate the licenses it would need if it were forced to ask permission. The fact that Google was doing this in the context of its for-profit search engine business weighs slightly against the use, but the overall analysis strongly favors fair use. Of course, non-profits who engage in similarly transformative projects (such as the Hathi Trust) would have an even stronger case.

None of this was addressed in Judge Chin’s decision. Indeed, the fair use argument wasn’t at issue at all at this stage of the litigation. While some objectors attempted to characterize Google’s behavior as lawless from the start, the ultimate target of their objections was the forward-looking arrangement created by the settlement agreement, which would make full texts available for sale and other commercial uses without permission of authors, a very different arrangement from the original search project. All of the objections that Judge Chin canvassed in his opinion were addressed to the new arrangement, not to the original search project.

In reality, Judge Chin resolved only one legal question: was the settlement “fair, adequate and reasonable” as required by the federal rules for class action settlements. He did not rule on the antitrust arguments, the international law arguments, or the copyright arguments presented by the objectors; rather, he used the mere fact that those arguments had been made vociferously by many objectors (regardless of whether they were ultimately valid) as evidence that the settlement was too messy to approve. The decision was explicitly not a legal validation of any of these objections, much less the original claim that Google’s search project was not fair use.

While there was neither a holding nor even a real discussion of the original fair use issue, Judge Chin’s opinion did include a few conflicting asides (or obiter dicta in lawyer-speak) on the issue. On page 25, Judge Chin characterized the original project as involving “an indexing and searching tool,” a characterization that, if anything, favors the argument that Google’s activities were fair use. After all, a similar “indexing and searching tool,” Google’s Internet search engine, is fairly well established as a fair use despite its unauthorized copying of entire Internet websites as part of the indexing process. And creating a search tool is a transformative use that will not supersede the original works that are copied, a powerful argument for fair use. But later, on page 27, Judge Chin described Google’s activities as “blatant, wholesale copying,” then quotes objectors characterizing Google’s book scanning as a “shortcut” in “disregard of authors’ rights.” Perhaps Judge Chin was just channeling the objectors here, rather than expressing his own views, but in any case, these tossed-off and inconsistent characterizations do not constitute a legal holding.

So, as we all work to decide what this latest twist in the Google Books saga means for our communities, we should keep one thing in mind: Google’s original fair use argument for scanning and snippet display remains persuasive, and has yet to be tested in court.

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