When Google Books launched more than a decade ago the idea that a tech company could scan millions of books to permanently store in their database without paying royalties would’ve been a good laugh. And yet, with yesterday’s Supreme Court action, Google Books’ victory was the expected—and widely supported—outcome.
On Monday morning the eight justices on the Supreme Court denied a certiorari from Authors Guild v. Google Books (with Justice Elena Kagan, apparently, abstaining), upholding a Second Circuit decision in favor of Google. It’s certainly not the decision many authors were hoping for, especially given that the ruling that stands could inspire other large-scale digitization projects. And though when you first hear the circumstances it might sound odd, it’s actually a totally logical application of copyright laws thanks to Google’s proactiveness.
Started in 2004, Google Books works with major libraries; like those of Stanford, Columbia, and the New York Public Library; to scan books and make them machine-readable. So far more than 20 million books (many of them apparently non-fiction and out of print) have been entered into the system. Some, but not all, of those came with publishers’ permission. Users are able to find key passages through Google’s search engine, but unlike other forms of search, Google does not display any ads, nor do they receive a payment if a user clicks through to buy a copy of the book. Though readers can search within the book, they cannot read “any substantial portion of the book.”
Which is the defense Google have been givingenraged authors ever since they were first sued for the project in 2005: the Google Books initiative serves to help readers find books they might not otherwise. Similar to thumbing through a physical copy in a bookstore before purchasing, the digitization helped readers access new books, and would actually boost sales by making it easier for readers to find works.
The Authors Guild’s case, on the other hand, felt wronged with equal conviction. To them, Google’s project was a clear infringement on a publisher’s copyright, even if it were only snippets at a time.
Unfortunately for them, the Second Circuit was decidedly on board with Google. Ultimately they came to the conclusion that it did not constitute infringement. As Michael E. Strauss writes on AdLaw by Request, the decision might seem initially like it’s going against the grain of copyright law; Google is a company scanning copyrighted material and putting it out on the Internet without compensating the owners of the works. But it actually falls directly in line with more modern takes on “transformative:”
Although authors are clear beneficiaries of copyright protection, the “ultimate, primary intended beneficiary is the public.” It is from that view that the court analyzes a fair use defense raised pursuant to § 107 of the 1976 Copyright Act.…The word ‘transformative’, as used to discuss the first fair use factor, can be misleading: fair use is not found when there has simply been a transformation in form (which, generally speaking, would be part of the original author’s derivative rights); rather, the term ‘transformative’ in this context requires a finding that the copier’s use “communicate[d] something new and different or expand[ed] its utility.”Even where the use at issue is commercially motivated, there is no presumption against concluding such use was fair. Moreover, even where the use at issue is a complete, unchanged copy of the original, there is no presumption against concluding such use was fair.
Indeed, the transformative nature of the tech giant’s database—essentially its digital search ability—qualified as “transformative” use, and thus, fair use. The court considered Google’s fair use defense, bearing in mind that they were walking the thin line between copyright protection, public knowledge, and a for-profit company committing unchanged and (often) unauthorized copying.
As usual, this was one of the case-by-case decisions made by courts on upholding “fair use” as a defense, but it certainly helped immensely that Google made its case so clearly supporting the notion of “public’s interest:” Users are capped at accessing no more than 16 percent of a book. No ads are run on Google Books pages, nor do they profit from links passing on readers to websites where they can buy the book. And as Jane Ginsburgwrote on Socially Aware, they made security a priority:
Similarly, in response to the authors’ concern that the database might be vulnerable to hacking, the court responded that “Google has documented that Google Books’ digital scans are stored on computers walled off from public Internet access and protected by the same impressive security measures used by Google to guard its own confidential information.” Less “impressive security” might doom a fair use defense, given the devastating consequences of unfettered access to reproduce and further communicate the full text of digitized works. Thus, while the court found that Google’s program did not present a sufficiently credible risk of harm, it is not clear who else’s programs could clear the decision’s high security bar.
And so what could’ve been another chapter in the litigation of this case (not to mention another chance thatGoogle would owe billions in damages) at the Supreme Court is avoided. This will likely influence other copyright decisions as they rub against the digital world, but it’s far from an example of a slippery slope (at least at this point). For now, it’s a copyright law happy ending.
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