Friday, November 15, 2013

Judge Chin Decides and Everybody Wins

About eight years ago I was one of the group at the Association of American Publishers that voted to file suit against Google for the unauthorized copying of upwards of 10million books (and other bound stuff) from the collection of five large academic libraries.  It wasn't long after the vote that I wished I had missed the meeting.

If nothing else, the passage of time since that suit was filed has proven that Google's activities were not the real enemy.  Google wanted to expose content locked away on shelves (off the network) to the same readers, researchers and other content users that the very same publishers were interested in selling to.  The risk publishers anticipated - that all content would be devalued and royalties due publishers would be circumvented - looks with hindsight to have been a red hearing.  The real problem for publishers with respect to the value of intellectual property quickly became apparent from the more obvious culprit: Amazon.com, which has successfully fought off the publishers, Apple, Google and everyone else and has won the battle over value.  After eight years, the (maybe) final end to the Google Books legal wrangle is a side show to the very real problems publishers have regarding their business models.

In ruling that the scanning program at Google was indeed fair use (and so emphatically that you have to wonder what took the guy so long) we may see some new products come out of this content library.  For example, I wrote of a subscription database product that Google could launch, others have spoken about the analysis of language, semiotics and culture that could be facilitated by this database and there will no doubt be other products.  What should be clear, is that access this ruling enables will enhance our knowledge and understanding about the content itself and the evolution of the printed word.  The next eight years might actually result in something useful.

There are four tests for fair use and Judge Chin as ruled as follows on these:

On purpose and character of use:
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.
On the 'nature of the copyrighted work':
While works of fiction are entitled to greater copyright protection, Stewart v. Abend, 495 U.S. 207, 237 (1990), here the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and available to the public. These considerations favor a finding of fair use.

On the "amount and substantiality of the portion used":
Google limits the amount of text it displays in response to a search.
Lastly, on the "effect of the use upon the potential market for or value of the copyrighted work":
...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. (Harris Decl. ¶ 7 (Doc. No. 1039)). Google Books provides a way for authors' works to become noticed, much like traditional in-store book displays.
In his concluding comments the Judge states:
In my view, Google Books provides significant public benefits. 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. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.
The wider relevancy of this opinion on fair use may well extend the law and could result in implications for other media and content businesses.

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