Google Prevails in Fair Use Case on Book Digitization Project

CHICAGOLAWBULLETIN.COM TUESDAY, DECEMBER 10, 2013

Volume 159, No. 241 Google prevails in fair use case on book digitization project

o o g l e ’s unofficial slo- braries would be a logistic im- reader, as well. The author gets gan “D o n’t be evil” p o s s i b i l i t y. her royalty on the sales. And sets a pretty low bar So Google addressed the prob- INSIDE IP LAW Google has taken a small step to- as a standard of cor- lem in a bold and controversial ward its mission of making in- porate conduct. way. Rather than seeking permis- formation universally accessible MaybeG that’s why the company is sion from publishers and authors and useful. so often the subject of criticism. to scan copyrighted books, Google C h i n ’s decision is an excellent The Google-haters are numer- scanned all the books and an- WILLIAM T. example of a ruling that achieves ous and the complaints are stri- nounced that if any copyright the ultimate goal of copyright law dent: Google invades our privacy, owner did not want its book in- MCGR AT H —to promote the dissemination it reads our e-mail, it allows cen- cluded in the project, Google of knowledge and the advance- sorship in China, it is unfair in its would gladly remove it. In other William T. McGrath is a member of Davis, ment of learning, while also pro- page rankings and it has inun- words, authors and publishers McGrath LLC, where he handles copyright, viding an economic benefit to the dated us with advertisements. could “opt- out”of the project trademark and Internet-related litigation a u t h o r. One group of researchers re- rather than “o p t i n g- i n .” and counseling. He is also associate A key consideration in a fair-use porting on the dangers of large The broad protectionists of director of the Center for Intellectual assessment is whether the new search engines said “Google has copyright were appalled, arguing Property Law at The John Marshall Law work is transformative, that is, School. In 2013, he was honored with a become the main interface for our that this turned copyright on its Lisagor Award from the Chicago Headline whether it merely supplants the whole reality.”That is perhaps a h e a d . Club. He can be contacted at original work or whether instead bit of hyperbole, but there is no Copyright is an opt-in system, w m c g r a t h @ d a v i s m c g r a t h .c o m . it “adds something new with a doubt that Google plays a crucial they said. By 2005, both the au- further purpose or different char- and pervasive role in our lives. t h o rs ’and publishers’a s s o c i a t i o n s acter, altering the first with new Sometimes we hate the ones we brought class-action lawsuits for find books and information. expression, meaning or message.” depend on most. copyright infringement. The risk For example, say an art his- Even though the copies Google Another criticism of Google is to Google of pursuing the project torian wanted to know whether made were verbatim, Chin found that it is a copyright infringer on was huge, but it persisted, relying there was any connection between that the use of the copyrighted a massive scale. The flash point on the fair-use doctrine to justify Marsilio Ficino, a Renaissance works was “highly transformative.” for this charge was its announce- its novel approach. philosopher, and Agostino Chigi, a The transformation comes ment of the Google Book Project The basis for Google’s fair-use wealthy Renaissance patron of the through the digitization, which in 2004. defense is that it tailors the tech- arts. By plugging those names in- transforms the text into a com- Google, in partnership with sev- nology of the book project to ac- to Google Books’search engine, prehensive word index that en- eral major university libraries, be- commodate, to a degree, the in- the researcher immediately dis- ables searching. Using the digital gan scanning the entire collections terests of copyright owners. covers at the top of the search text for searching and display of of the books in these libraries. Public domain books can be results a book entitled “I n f l u - snippets is analogous to a search At present, Google has digitized searched and viewed in their en- ences: Art, Optics and Astrology engine displaying copyrighted more than 20 million books cover tirety. For copyrighted books, in the Italian Renaissance,”p u b - thumbnail images when providing to cover. The purpose for this however, while the entire text is lished by the University of Chica- results for a search of websites, a prodigious project is to enable searched, only “snippets”of a few go Press this year. practice that has previously been computerized searching of the en- lines containing the search terms The reader is able to browse held to be fair use in Perfect 10 v. tire text of the books. can be viewed. the portions of the book where A m a z o n .c o m (9th Cir. 2007). As lawyers, we are accustomed Some publishers allow Google the search terms are found to see The court also ruled that Google to doing full-text word searches of to display more extended portions if the book is relevant. Because Books does not usurp the market court decisions on Westlaw or than snippets while not allowing only excerpts are displayed, the for the original book. Google does Lexis, but the Google Book Pro- the entire book to be viewed. Us- researcher can’t read the entire not sell the digital scans. ject for the first time enables a ing Google Books to search for book and can’t download any ma- And, given the technological re- user to search the entire contents terms in a copyrighted book is like terial from the book. strictions built into Google Books, of the libraries at Harvard, Stan- using an electronic index or elec- To facilitate the immediate pur- it is unreasonable to think that ford, Oxford, University of Michi- tronic browsing. chase of the displayed work, readers would try to read an en- gan and many others. The mas- For now, at least, Google can Google provides links to online tire book via snippets. “To the sive project is a large stride to- relax. In Authors Guild, Inc. v. book vendors. c o n t r a r y, ”said the court, “a rea- ward Google’s ambitious corpo- Google, Inc., (S.D.N.Y., Nov. 14, 2013), This is how copyright law sonable fact-finder could only find rate mission: “to organize the U.S. District Judge Denny Chin should work. that Google Books enhances the w o r l d ’s information and make it ruled that the Google Book Project The reader has access to books sales of books …Google provides universally accessible and useful.” is a fair use and granted Google’s that may only be available at dis- convenient links to booksellers to The obvious problem is copy- motion for summary judgment. tant libraries and can easily find make it easy for a reader to order right. While millions of the vol- The court pointed to several new information that would oth- a book.” umes in the project are in the benefits of the project. erwise have been inaccessible to Chin is no doubt right about public domain, millions more are Most importantly, Google Books the reader. this. In fact, I hear that copies of still protected by copyright. has become an essential tool for The publisher has already made “Influences: Art, Optics and As- To seek permission to digitize research, allowing scholars and a sale of the book to the library trology in the Italian Renaissance” every copyrighted book in the li- other readers an efficient way to and might get another sale to the are flying off the shelves.