Tag Archives: google books search

Library Copyright Alliance files amici brief in Authors Guild v. Google

On July 8, 2014, the Library Copyright Alliance filed an amici brief in the Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.

The brief notes that GBS has become an essential research tool for LCA members and includes numerous examples and quotations—both in the text of the brief and accompanying appendix—from librarians explaining the value of the snippet display provided by Google. The snippet display allows librarians and researchers to identify materials that are hard to find, conduct research, developing curricula and collections, make determinations on whether to request particular books through interlibrary loans, and checking citation.

The snippet display is a critical function that makes GBS a valuable research tool yet does not substitute for the full text, displaying only three short snippets in response to a query. The brief notes that the Appellants in the case negotiated and agreed to a settlement (ultimately rejected by Judge Chin, leading to this continuing litigation) which would have allowed Google to provide a free “Preview” service that would have allowed display of up to twenty percent of the book’s text—far more than the GBS snippet display. The brief points out that “If display of 20 percent of a book did not cannibalize sales of the book, then surely display of a few snippets of a book would not do so either.”

The third section of the brief discusses the relationship between Section 108 and fair use, addressing the argument made by the amici for Authors Guild . The brief points out that the Second Circuit’s own ruling just a month prior in Authors Guild v. HathiTrust rejected the argument that the existence of Section 108 forecloses reliance on fair use. Section 108 not only includes an explicit savings clause, but the legislative intent clearly demonstrates that specific exceptions codified in the Copyright Act “do[] not limit the availability of fair use for conduct that does not fall within its scope.” Legislative history in both the Senate and the House discuss the relationship between Section 108 and fair use, noting that Section 108 was designed to give libraries a safe harbor and rights in addition to fair use.

Finally, the brief notes that the copies Google made available to partner libraries constituted fair use. Quoting the district court, the brief points out that “the purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.” Even if the Second Circuit evaluates Google’s purpose, rather than the libraries’ purpose, the brief points out that GBS did not affect the market because libraries would not have paid licensing fees to digitize books in their collections; libraries do not have the budgets to pay for digitization licenses for legacy materials nor is there an efficient mechanism to pay for such licensing. The brief emphasizes that a potential market for extended collective licensing agreements are speculative and do not constitute existing or potential traditional markets.

ARL Joins LCA Colleagues and EFF to File Amicus in Support of #GBS

On August 1, 2012, ARL joined other members of the Library Copyright Alliance (LCA) (the American Library Association, Association of Research Libraries and Association of College and Research Libraries), as well as the Electronic Frontier Foundation (EFF), to file a friend of the court brief (PDF) in Authors Guild v. Google, Inc., a lawsuit in which authors allege that Google violated copyright by scanning books to create Google Book Search (GBS), a search tool similar to its Internet search engine. The LCA/EFF brief defends GBS as permissible under the doctrine of fair use, a flexible right that allows copying without payment or permission where the public benefit strongly outweighs the harm to individual rightsholders.

The LCA/EFF brief argues the following main points: that Google Book Search is tremendously beneficial to the public, that this public benefit tilts the analysis firmly in favor of fair use, that a legislative “fix” is both unnecessary and unworkable, and that the Authors Guild should not be permitted to shut down Google Book Search after encouraging public reliance on the tool for years.

In addition to these general arguments, the LCA/EFF brief incorporates stories contributed by librarians of all types demonstrating the ways in which GBS is an essential tool for librarians, enables new forms of research, and even benefits authors. Librarians know a thing or two about searching for books, and we know that GBS is just the latest in a long tradition of legitimate and fair tools to help research, teaching, and learning.

The members of LCA have long had a commitment to supporting libraries’ interest in the Google Book Search settlement agreement. For more, including past guides to understanding the settlement, see the ALA Washington Office GBS blog at http://wo.ala.org/gbs/ and the ARL Google Books resource page at http://www.arl.org/pp/ppcopyright/google/index.shtml.

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.