With Much Ado About Public Service, Google Pleads Fair Use in Big Copyright Case

Arguing that its Google Books program makes fair use of copyrighted books by providing an indispensable public service, Google has asked a federal court to dismiss The Authors Guild’s claim that Google is infringing the copyrights of authors on a “massive” scale.

Google has scanned more than 12 million books–many of them still under copyright protection–as part of its Google Books program. Google indexes every word of the scanned books. It then makes snippets of the books available in search engine results, according to keywords entered by Google search engine users.

Google’s use of books is fair because it provides vast public benefits without any demonstrated harm to plaintiffs,Google asserts in its motion, filed in US District Court in New York City on July 27. (Emphasis is Google’s.)

The Authors Guild originally sued Google for copyright infringement in 2005, alleging the search engine company is scanning books without permission from authors for its own commercial gain. The guild says the Google Books program undermines the ability of authors to license and sell their books. It is seeking a court injunction to stop the Google Books program. The American Society of Media Photographers has filed a similar but separate lawsuit against Google in 2010.

In making its fair use argument, Google paints itself as a beleaguered public servant, prevented from advancing human knowledge by specious claims of copyright infringement.

“Google Books is an important advance on the card catalogue method of finding books,” the company says in its motion. “The advance is simply stated: unlike card catalogues, which are limited to a very small amount of bibliographic information, Google Books permits full-text search, identifying books that could never be found using even the most thorough card catalog. Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.”

Google says that users cannot download the entire text of the books that show up in the search engine results. It only leads them to relevant books which they can purchase elsewhere if they wish.

The scanning and indexing of the books is fair use, Google argues, because the end use (thorough indexing of every word of every book) is “highly transformative”:  Google search engine users can search for information and get results showing snippets from all books containing the search terms. “Indeed, it is no overstatement to say that Google Books has transformed scholarly research,” the company says in its motion. “Google Books yields a literally unprecedented public benefit, and that benefit militates strongly in favor of a finding that Google’s scanning,indexing, and snippet display constitute fair use.”

Google does not mention that its apparent fit of civic virtue is driven by the potential to turn a profit by scanning and indexing the copyright works of authors. Those who use the Google Books index would effectively provide Google with personal information every time they did a search. That information could be sold to marketers, or used by Google to push highly targeted advertisements to Google search engine users.

But Google waves its hands to distract the court’s attention from all of that: “Google’s status as a commercial entity does not tip the scales against a finding of fair use…Much more significant is that a student or professor (or indeed anyone who finds a Library Project book on Google Books) is engaging in precisely the sort of use historically favored as noncommercial.”

Google and The Authors Guild had reached a tentative agreement in 2009 to settle the case. It would have allowed the Google Books program to continue if authors were allowed to opt out. But the judge in thee case rejected the agreement. He said the agreement would have to be ‘opt in’ for all authors (rather than opt out) in order to comply with copyright law.

Google has rejected an ‘opt in’ system as too cumbersome, so the Authors Guild suit has continued. The ASMP lawsuit is also pending.

Without commenting directly on Google’s motion, attorneys for The Authors Guild say they have filed their own motion for summary judgment. That motion is not yet available for public review, however.

Related stories:
Judge Block’s Google’s Divide-and-Conquer Strategy in Big Copyright Case
ASMP, Other Trade Groups Sue Google (subscription required)

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5 Responses to “With Much Ado About Public Service, Google Pleads Fair Use in Big Copyright Case”

  1. With Much Ado About Public Service, Google Pleads Fair Use in Big Copyright Case | The Click Says:

    [...] Link: PDN Pulse » Blog Archive » With Much Ado About Public Service, Google Pleads Fair Use in Big… “Google’s use of books is fair because it provides vast public benefits without any demonstrated harm to plaintiffs,” Google asserts in its motion, filed in US District Court in New York City on July 27. (Emphasis is Google’s.) July 31, 2012 [...]

  2. Gary Says:

    Does that mean Googles source code is fair game too?

  3. MyNameHere Says:

    As a public service, every time I hear a car alarm go off, I will remove the vehicle from the neighborhood to solve the noise problem, then loan the vehicle out to people who can’t afford to own their own cars.

  4. EDigital Says:

    Does that mean Google has also been scanning magazines? They are currently in libraries as well, but in reference sections, so they can’t be checked out. With this argument, what’s stopping the scanning of magazines, which are already struggling to stay afloat in an instant info society. Hard to believe they are doing this strictly for “scholars.”

    There’s also a MAJOR difference between libraries and Google – libraries are not looking for profits, personal data, or another way to “monetize” people’s art, Google is. If they weren’t, they would stipulate that they would not gather any personal data from the project, or send people to any online stores, in order to avoid preferential treatment (or the look of that) of its own clients.

    Sad when corps. only see things from 1 point of view, their own. Meanwhile, fewer people are reading in general, and authors struggle as it is, to simply make a living.

    What’s wrong with e-books, then the authors make money and everyone makes out, plus information is easier to find.

  5. pam kelso Says:

    I think that some might be surprised at how data left on library computers is used.

    I use Google a lot and have a blogger blog but this is really pushing the envelope. If you scan a book in it’s entirety why buy it.