Tag Archives: Google Books Settlement

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.

Google Books Decision A Huge Victory for Fair Use and for Research Libraries

In a powerful affirmation of the value of research libraries, Judge Denny Chin today ruled that Google’s digitization of millions of books from university library collections was a fair use. Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors. Indeed, digitization and search give “new life” to books that would otherwise have been “forgotten in the bowels of libraries.” Well, okay, libraries could probably have lived without that last part.

What lessons are there in this decision? Here are a few takeaways:

  • While we still await a decision in the HathiTrust case, it can’t hurt that Judge Chin, who now sits on the Court of Appeals for the Second Circuit, wholeheartedly endorses Judge Baer’s reasoning in that case, and finds expressly that all of the libraries’ uses of the Google scans are fair. After all, the Guild tried to sue Google not only for its uses of the scans, but also for sharing scans with research library partners and contributing to any infringement the libraries may have committed. Chin rejects those claims decisively, relying on HathiTrust and endorsing explicitly all of the uses HathiTrust members have made: preservation, search, and access for the print-disabled. Chin even quotes this wonderful passage from Judge Baer, which always bears repeating:

    “I cannot imagine a definition of fair use that would not encompass transformative uses made by [HathiTrust] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”

    In other words, today’s opinion is the strongest possible endorsement of library uses, as well as of Google’s uses, and it shores up Judge Baer’s opinion in that regard.

  • Amicus briefs really matter. Judge Chin relies on the LCA brief for core pieces of the opinion, including his finding that the Google project has significant benefits for the public (including libraries, researchers, the print-disabled, and more), and that those benefits are generally also favorable for authors, whose works are found and acquired by libraries and others by means of Google Book Search. The amicus brief filed by Digital Humanities Scholars is also crucial in helping Judge Chin explain the benefits of the book database for research.

  • The decision is a victory not only for transformative, non-consumptive search, but also for serving “traditionally underserved” libraries and their users, including disabled patrons.

  • It is time for the Authors Guild and other rightsholders to wise up and focus their energies on more productive pursuits. Years and years of litigation, millions in legal fees, and what have they got to show for it? It is beginning to look like individual authors have been sold a bill of goods by their leadership and by the lawyers that have been representing them in these cases. There is no pot of gold at the end of these lawsuits, and the research tools they’re trying to kill are their best hope of finding an audience. It is time for Authors Guild members, and for all authors who have supported this strategy, to ask themselves whether all this has been worth it. The Guild’s leadership has already said it plans to appeal, but perhaps it is not too late for members to suggest otherwise. The Second Circuit Court of Appeals is already deliberating on the HathiTrust case, and will surely issue an opinion before this case can be heard. The same panel hearing that case—Judges Leval, Cabranes, and Parker—will hear any appeal of this one. There is little reason to believe those judges will reverse Judge Baer in Hathi, and then the Guild will find itself once more arguing that what Google did was rank piracy even though its library partners were core fair users. The writing is on the wall and it’s time to back down.

Those are my main impressions and takeaways at this point, though I’m sure this is an opinion we’ll be discussing for weeks, months, and perhaps years to come.

Brandon Butler is the Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic at American University, Washington College of Law.

Library Copyright Alliance Releases Guide for the Perplexed Part IV, Analysis of Judge Chin’s Rejection of the Settlement

Today the LCA is proud to release A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement, the latest in the ongoing series of Guides for the Perplexed, prepared by Jonathan Band to help the library community understand the ongoing legal dispute over Google’s book scanning activities. (For more than you probably ever need to know about the saga of Google Books, see Parts I, II, and III).

In this installment, Band explains why the Judge rejected the proposed settlement:

The court concluded that the settlement was unfair because a substantial number of class members voiced significant concerns with the settlement.… However, the validity of the objections seemed less important to the court than the fact that many class members raised them.

He also explains what the decision ultimately means for libraries, saying that although it’s too early to tell what the parties will do next:

[I]t appears that both the challenges and the opportunities presented to libraries by the settlement when it was announced in the fall of 2008 are growing narrower and more distant.

Read the full guide here.

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.

[C]ourts should not be making law at the behest of big companies. That’s what Congress is for.

Siva Vaidhyanathan making a joke (hopefully on purpose) about who’s best situated to get useful legislation from Congress in his Chron article about Google Books.

Library Copyright Alliance Statement on the Google Books Decision

The Library Copyright Alliance (LCA) – comprised of the American Library Association (ALA), the Association for College & Research Libraries (ACRL) and the Association of Research Libraries (ARL) – made the following statement concerning the recent decision by Judge Chin in the proposed settlement of the Google Books lawsuit:

“The decision makes clear that copyright law continues to present significant barriers to libraries and other partners interested in engaging in mass digitization initiatives. Such initiatives provide broad, deep and important public access to cultural and historical resources to users throughout the world. The library community has always supported—and worked long and hard for—constructive and practical orphan works legislation that would benefit all stakeholders.”

PDF of the Statement