Judge Chin Finds Google's Book Scanning Is Fair Use, and Eight-Year Case Is Over

Publishers Lunch

After 8 years of litigation over Google's broad-scale scanning and indexing of more than 20 million books in libraries, Judge Denny Chin has granted summary judgment in favor of Google, ruling that their work qualifies as fair use. The revised case brought by the Authors Guild and individual authors has been dismissed.

Judge Chin's ruling is sweepingly in Google's favor, praising the service the company has provided and offering no shades of grey or nuance of interpretation in weighing whether it qualifies as fair use. Judge Chin's examination of all four factors to evaluate fair use is unequivocable, beginning with the significant first factor of whether the service is transformative: "Google's use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative." He suggests "the display of snippets of text for search is similar to the display of thumbnail images of photographs." Google Books "uses snippets of text to act as pointers directing users to a broad selection of books."

Additionally, "Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before." Yet "it is not a tool to be used to read books," so it does not take their place.

On the third factor, which addresses the amount of the original used, Judge Chin finds the scanning of entire books reasonable and permissible. "As one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search."

On the fourth factor, which considers the effect of the usage on the commercial market for the copyrighted works, the eight years that have passed since the litigation began more or less answered the question for the judge. He says the plaintiffs' arguments that "neither...makes sense." Rather, he leans in the opposite direction, as Google has suggested from the inception of the program, saying that it addresses the discovery problem so prominent in creators and publishers minds these day: "A reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered -- whether potential readers learn of its existence. Google Books provides a way for authors' works to become noticed, much like traditional in-store book displays. Indeed, both librarians and their patrons use Google Books to identify books to purchase." Chin declares, "In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales."

Google said in a brief statement: "This has been a long road and we are absolutely delighted with today’s judgement. As we have long said Google Books is in compliance with copyright law and acts like a card catalog for the digital age giving users the ability to find books to buy or borrow."
Full ruling

The publisher plaintiffs had settled their separate case against Google in October 2012. The parties said at the time "the settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use."

That followed a broader, bolder settlement agreement among Google, the publishers, and the authors first crafted in October 2008 but ultimately rejected by Judge Chin in March 2011. At the time, Chin famously dubbed the proposal "a bridge too far." He was concerned that the proposed settlement would "implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the [settlement] would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.