Judge backs Google on scanning of books: ‘All society benefits’

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Posted: Monday, November 18, 2013 12:00 am

Google’s idea to scan millions of books and make them searchable online seemed audacious when it was announced in 2004. But fast-forward to today, when people expect to find almost anything they want online, and the plan seems like an unsurprising and unavoidable part of the Internet.

So when a judge last week dismissed a lawsuit that authors had filed against Google after countless delays, it had the whiff of inevitability. Even the judge, Denny Chin of the 2nd U.S. Circuit Court of Appeals, said during a September hearing on the case that his law clerks used Google Books for research.

“It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders,” Chin wrote in his ruling. “Indeed, all society benefits.”

The Authors Guild said it disagreed with the decision and planned to appeal. Google said it was “delighted” with the outcome.

Google began its book-scanning project in 2004, without obtaining permission from copyright holders. The next year, groups representing authors and publishers sued Google, claiming copyright violations and beginning an eight-year court battle.

In the meantime, Google has continued to scan more than 20 million books, the majority of which are out of print, without compensating copyright holders. They are searchable on the Google Books website, which returns snippets but not entire texts. Some full books are for sale on Google Play through partnerships with publishers. Google also has certain agreements to give libraries and publishers digital copies of their books that it scans.

Google and other technology companies often push the limits of regulation and law, and hope that eventually the rest of the world — and the law — will catch up.

“What seemed insanely ambitious and this huge effort that seemed very dangerous in 2004 now seems ordinary,” said James Grimmelmann, a law professor at the University of Maryland who has followed the case closely. “Technology and media have moved on so much that it’s just not a big deal.”

The ruling examined whether Google’s use of copyrighted works counted as fair use under copyright law, which Chin determined it did. The decision opened the door for other companies to also scan books.

Google’s book search is transformative, he wrote, because “words in books are being used in a way they have not been used before.” It does not replace books, he wrote, because Google does not allow people to read entire books online. It takes security measures, like not showing one out of every 10 pages in each book, to prevent people from trying to do so.

One potential problem for Google was the notion that using copyrighted material for moneymaking purposes weighs against a finding of fair use. Although the company does not sell the books and stopped running ads alongside them in 2011, it benefits commercially because people are drawn to Google websites to search the books, Chin wrote. But, he added, “Even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes.”

He cited the benefits for librarians, researchers, students, teachers, scholars, data scientists and underserved populations like disabled people who cannot read print books or those in remote places without libraries. He said it also helped authors and publishers by creating new audiences and sources of income.

“In this day and age of on-line shopping, there can be no doubt that Google Books improves books sales,” he wrote.

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