In 2004, Google undertook an ambitious project to scan and preserve every printed piece of material in the world. This eventually caused great consternation with copyright holders and led to The Authors Guild filing a lawsuit, among others, alleging that Google’s scanning and subsequent book text index was an impermissible infringement on copyright. The suit appeared to reach a resolution in 2009 when The Authors Guild and other plaintiffs agreed to a settlement with Google. This settlement required an opt out, rather than an opt in and based upon that and other factors, the judge denied the settlement. All documents can be seen here at The Public Index.
I covered this extensively in 2009.
- Round Up of Google Book Settlement Articles
- Settlement summary
- Judge Chen Rejects the Settlement
The suit has continued with the Authors Guild getting approval for class certification and on July 27, 2012, both parties filed motions for summary judgment. A motion for summary judgment is when you say to the court that there are no “material” facts in dispute and therefore the only question that remains is one of law and you want the Judge to decide the questions of law now. In any case there are questions of fact and questions of law. A question of fact is whether the light was red or green. A question of law is whether a person is negligent automatically if the light was red and you drove through it. Questions of fact are for the fact finder to decide. The fact finder can be a jury or can be the judge (in the case of a bench trial). Questions of law are for the judge to decide.
Most of the time, there is no testimony or taking of evidence. You file three documents: The motion, a statement of undisputed facts, and the brief (or memorandum of law) in support of the motion.
On the Authors’ Guild side, they are arguing that Google engaged in creating unauthorized copies. This is undisputed. Google did create copies of books without attempting to obtain permission from the copyright holders. Many of the books they have scanned are in contravention to the copyright. Google has responded by saying that yes, it engaged in unauthorized copying but their actions are fair use.
Fair use is a defense to copyright infringement and requires the judge to balance several factors.
Purpose and Character of the Use.
The Authors Guild argues that the traditional fair use defense is applied when portions of one copyrighted work are used in a new work. Google’s copying of entire texts, however, can never fall within fair use defense is the essential argument of the Authors Guild. In support of its argument that Google’s search index of books is not transformative, Authors Guild cites Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) as standing for the proposition that verbatim copying is simply not permissible. (Most scholars and courts cite Harper & Row for the “heart of the matter doctrine” in which small reproduction of material can be infringing if it goes to the heart of the matter). Instead, Authors Guild argues that a transformative work must be “a different work created that … had a substantially different purpose and character from the original copyrighted work.”
Google counters that the snippet views are not much more than a card catalog or paper index and thus does not supersede the original. “Books are meant to be read” says Google. The search results do not replace actual reading of the books. Google argues that the full text search offers uses not previously available.
Authors Guild argues that Perfect 10 case is different because Google was indexing items already on the internet rather than taking items and scanning them in and creating a new digital copy. (As an aside, this is the most nonsensical argument of the AG’s brief which I found to be weak in general. It’s akin to the argument that if it is on the internet, you can copy it.) Moreover, to the extent that Perfect 10 cannot be distinguishable from the present case, Authors Guild argues that the decision cannot be reconciled with the existing standards set forth by the Second Circuit. In other words, Perfect 10 is decided by a different court who decided it wrong.
The most persuasive case law that Authors’ Guild referenced was the Video Pipeline v. Buena Vista Home Entertainment, (3d Cir. 2003). Video Pipeline created two minute trailers and streamed them over the internet. The trailers were used by home retailers to sell or rent movies. The Third Circuit found in favor of the movie companies in that the trailers were verbatim copying that included no original creative work and reduced the potential marketability for licensed trailers.
Nature of the Copyrighted Work
This is acknowledged by both parties to essentially be a non important factor so I’m going to skip it. “Some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. Google has engaged in the copying of both fiction (afforded greater protection) and non fiction and while most of the texts scanned are non fiction, it is unlikely that this will be a turning point for the judge.
Amount and Substantiality of the Work Copied
This is an interesting debate. Google has copied the entirety of the work but only publishes snippets of the text in response to a search. Google points out that a search index cannot be helpful unless the entire text is searchable.
Authors Guild argues that Google has engaged in, essentially, piracy of books by providing a digital copy to library partners. Google counters that libraries are allowed to have copies for preservation and haven’t used the copy for impermissible purposes.
Authors Guild takes exception to amount of words shown to users. One search they conducted resulted in 37 snippets shown for a total of 1900 words verbatim. (Authors Guild actually bolds this). Authors Guild also asserts that only 10% of the book’s text is blacklisted and therefore, nearly all of the text can be obtained by a user. In its documents, Google argues that only short snippets, about an eight of a page long, are displayed and that there are security measures in place that prevent a user from recovering the text of an entire page, let alone an entire book.
In some cases, Google has permission to show up to 20% of a book and in other cases, books like the Black’s Law Dictionary are excluded from snippet view. The three snippet preview is standard for books that are not part of the Partner Program and are not excluded.
Authors Guild also argues that Google shows the heart of the books by displaying text that is responsive to a users key word search.
Effect on Potential Market or Value
This final factor “must take [into] account not only … harm to the original but also … harm to the market for derivative works.” Authors Guild says that it could license works in snippet fashion but just has never gotten around to it; however, should Google be allowed to scan and display snippets without permission, licensing text for search would be a derivative market totally ruined. This argument reads to me thusly: we sat on our asses and never though that there would be ways we could monetize our works but Google created a market for it and now we want the money that such a market could create.
Google argues that browsing actually increases the market for books. The most damaging testimony for the Authors Guild is that it encourages all of its members to make their first chapter freely available on the internet because “allowing a book to be browsed in this way promotes the sale of the book.” Gratz Decl. Ex. 2, Aiken Dep. Tr. 176:1-8, 13-24.1. Google points out that Authors Guild has not provided any evidence that the Book Search has reduced even one book sale.
In regards to the licensing argument, Google states that there is no market for “tiny book snippets” and points to the fact that 45,000 publishers have agreed to allow Google to display snippets in much larger amounts than what is shown for non Partners. A large number of publishers and authors have agreed to participate in Amazon’s “Search Inside the Book” for no additional compensation. And, of course, Authors’ Guild urges its members to make its first chapter freely available on the internet. Whatever market the Authors Guild dreams of existing for licensing of book snippets doesn’t exist, argues Google.
Authors Guild essentially ignores any public benefit argument, but Google, EFF and Library organizations all speak to the importance and value the Google Book Search project has for the public. I’d love to see public benefit play an important role in these arguments, but I’m not raising my hopes.
Google has better lawyers however, the Second Circuit is very pro copyright holder. In another circuit, I may have given Google the edge, but in the Second Circuit, I think the Authors Guild is speaking to a friendly court. Both parties will the have the opportunity to file responses to the other and those should be filed shortly.