In a decision that may have deep and wide-ranging implications for the publishing industry and for future applications of the fair use doctrine, Judge Denny Chin has dismissed the Authors Guild’s eight-year-old lawsuit against Google over its Google Books project.
This decision comes as less than a total surprise to many observers, even though the future of Google Books seemed uncertain following Judge Chin’s rejection of a proposed settlement in early 2011. (In 2012 Google did reach a separate settlement with the Association of American Publishers, which had sued Google specifically over its use of books published by McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon & Schuster.) However, an appellate court’s rejection this past summer of Judge Chin’s granting of class status to the plaintiffs contained significant hints that the lawsuit was not going to end well for them—in that decision, the Second Circuit hinted strongly that they found Google’s fair-use defense compelling.
And in the end, Judge Chin agreed. Strongly. In his decision, he reviews the facts and procedural history of the case. Among the facts he lays out are, significantly, a list of five benefits that he feels Google Books offers to society. All quotes in the section below are taken from Judge Chin’s written decision. He cites as factual truths that the Google Books project:
- Increases efficiency of discovery. (“Google Books provides a new and efficient way for readers and researchers to find books… [it] has become an essential research tool.”)
- Makes text-mining possible on a massive scale. (“Google Books permits humanities scholars to analyze massive amounts of data—the literary record created by a collection of tens of millions of books.”)
- Expands access to books. (Google Books “provides print-disabled individuals with the potential to search for books and read them” and “facilitates the identification and access of materials for remote and underfunded libraries.”)
- “Helps to preserve books and give them new life,” particularly by making old and out-of-print books available to the general public.
- Benefits authors and publishers “by helping readers and researchers identify books” and by providing “links to sellers of the book.”
In his analysis of the fair use argument, Judge Chin begins by strongly defending the characterization of Google’s digitization project as a “transformative” use (a heavy factor in favor of fair use), and then applies each of the four tests for fair use to Google’s actions:
- Purpose and Character: Here Judge Chin refers back to his argument that “Google’s use of the copyrighted works is highly transformative,” in that it “transforms expressive text into a comprehensive word index”; he emphasizes that “the use of book text to facilitate search through the display of snippets is transformative.” In this case, he argues, “words in books are being used in a way they have not been used before.” He acknowledges that commercial use of copyrighted material generally weighs against a fair-use finding in this context, but points out that a) “Google does not sell the scans it has made”; b) “it does not sell the snippets that it displays”; and c) “it does not run ads on the About the Book pages that contain snippets.” In short, Google “does not engage in the direct commercialization of copyrighted works.” Judge Chin concludes that the first fair use factor “strongly favors a finding of fair use.”
- Nature of the Copyrighted Works: In considering this test, Judge Chin takes into account the fact that “the vast majority” (as much as 93%) “of the books in Google Books are non-fiction,” and therefore entitled to less protection against a fair use claim than creative, fictional works would be. Given that the books are also published and publicly available, he finds that the second test “favor(s) a finding of fair use.”
- Amount and Substantiality of Portion Used. The books in question were copied and digitized in their entirety, which would naturally undermine a fair use claim on the grounds of this test; however, it is also true that “Google limits the amount of text it displays in response to a search.” Despite that mitigating factor, Judge Chin concludes that, on balance, “the third factor weighs slightly against a finding of fair use.”
- Effect of Use upon Potential Market or Value. Here is where Judge Chin has the strongest words for the plaintiffs, who argued that “Google’s scans will serve as a ‘market replacement’ for books” and that users could game Google’s system in order to gain unpaid access to the entirety of a desired text. “Neither suggestion makes sense,” says Judge Chin. In fact, given the protections and limits Google has put into place, “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.” Judge Chin concludes that “the fourth factor weighs strongly in favor of a finding of fair use.”
So, to summarize Judge Chin’s findings on the four tests: the first and fourth strongly favor a fair use finding; the second somewhat favors a fair use finding, and the third “weighs slightly against” a fair use finding. It’s not a knockout, but Google wins on points.
A paragraph from Judge Chin’s closing comments is worth quoting in full:
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.
Kenneth Crews, at the Columbia University Libraries Copyright Advisory Office, posted a response to Judge Chin’s decision on November 14 in which he ventured that “this ruling joins court decisions about HathiTrust and in electronic reserves [i.e., in the Georgia State case] in demonstrating that even extensive digitization can be within fair use where the social benefits are strong and the harm to rightsholders is constrained.”
That conclusion is hard to argue with.
The Authors Guild plans to appeal.
21 Thoughts on "Google Books Lawsuit Dismissed: "All Society Benefits," Says Judge Chin"
Reblogged this on Progressive Geographies and commented:
A good analysis of a major legal decision in publishing.
As someone whose faith in the US judicial system often waivers, I was very pleased to see the courts do the right thing here, and in the perhaps more worrisome case of the initial proposed settlement.
It’s important to separate out those two for clarity. This lawsuit involves Google scanning books, creating an index and displaying small snippets of text in response to search queries (also potentially selling ad space alongside those search results). The proposed settlement was an over-reaching land grab, an attempt to give Google monopoly control over the entirety of orphan works and to rewrite copyright without consulting Congress. That was rightly thrown out, leaving the court to get back to the original lawsuit about scanning and indexing.
Had this ruling gone the other way, it would have made search engines illegal, as there’s no difference between scanning copyrighted books and indexing and making a copy of copyrighted websites. This would have caused major problems worldwide.
Furthermore, this should be seen as good news for book publishers, particularly scholarly book publishers. From my days doing lab manuals and advanced science books, our biggest problem was not piracy, but was instead awareness. Our sales were greatly limited by our ability to let researchers know that our books existed. If Google can present books as an information source available to search queries, that can greatly help with the obscurity problem and hopefully drive sales. It’s important to note the work Google has done to make it difficult, if not impossible to read extensive text from a book. If someone can get all they need from a two sentence snippet, they were unlikely to buy your book. But for those needing deeper knowledge, finding out that your book exists is the first step to a potential sale.
I respectfully disagree with my publishing colleague David Crotty. This decision only exacerbates a major problem with fair-use jurisprudence, muddying the conceptual waters further when what we need is more clarity. It is anything but good for copyright law. It is also decidedly not good for scholarly publishers. The same line of argument used by Judge Chin is used by the ARL in its Code of Best Practices to make the case that digitizing copies even of entire scholarly books for use in classrooms through e-reserve systems can be viewed as “transformative” in exactly the same way the judge says. (Note, by the way, that Judge Evans in the GSU case did NOT find that copying to be “transformative.”) Since Judge Chin’s interpretation of “transformative” differs in significant ways from that of Judge Pierre Leval, who created the concept in a 1990 law review article (which then influenced the Supreme Court’s landmark 1994 decision in the 2 Live Crew parody case), this suit is far from over because Judge Leval will hear this case on appeal in the Second Circuit. (he was one of the three judges who overturned Chin’s previous decision and ordered him to rule on the fair-use issue.) For more details about what’s wrong with the decision, see my letter to Judge Chin following:
Dear Judge Chin,
I have just read your decision to grant Google summary judgment in this case and, as a fellow Princetonian, I must express my disappointment. You have evidently bought into the Ninth Circuit’s line of reasoning about “transformative” fair use, which I believe to be seriously mistaken.
No one questions the social utility of Google Books. Indeed, publishers recognized its utility early on. The university press I headed at Penn State at the time was the first university press to sign up for the Google Partner Program, and Google itself cited our participation as a model case in further promoting the program. But the Library Program is another matter.
You forget that Judge Newman recognized the social utility of photocopying in the Texaco case, yet nevertheless found copying in that case not to be fair use. As the judge argued:
“We would seriously question whether the fair use analysis that has developed with respect to works of authorship alleged to use portions of copyrighted material is precisely applicable to copies produced by mechanical means. The traditional fair use analysis, now codified in section 107, developed in an effort to adjust the competing interests of the authors – the author of the original copyrighted work and the author of the secondary work that ‘copies’ a portion of the original work in the course of producing what is claimed to be a new work. Mechanical ‘copying’ of an entire document, made readily feasible by the advent of xerography . . . , is obviously an activity entirely different from creating a work of authorship. Whatever social utility copying of this sort achieves, it is not concerned with creative authorship (italics added).”
In your analysis, you quote from Pierre Leval’s classic article suggesting that a new work is “transformative” if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” You go on to say:
Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.”
The key mistake here is located in the words “allow for.” That is NOT what Leval said. He said that the act of fair use itself must consist in “altering the first with new expression, meaning, or message,” and Google’s computer-created indexing does not do that; there is no creativity in the functioning of Google’s computer algorithm. It is, as Judge Newman said, merely a “mechanical” procedure.
Why is this so important? It is important because there are those who will exploit the notion of re-purposing, which captures one part of Leval’s argument, to do real damage to the Constitutional purpose of copyright. Like the Ninth Circuit, they will ignore the idea that the new work must itself come from an act of human creativity that adds new meaning, etc.
I have written at length about this problem, pointing out that the ARL, in its Code of Best Practices on Fair Use (2012), uses the idea of re-purposing to argue that, because scholarly monographs and journal articles were originally written for the benefit of other scholars, not students, their use in the classroom for student instruction is fair use since the use is for a different purpose. That, effectively, means that entire articles and books can be justifiably digitized and used in the classroom without the publisher’s permission. One likely result is that the entire market for paperbacks published by university presses for classroom use will be wiped out.
Well, you might say, the fourth factor will come to the rescue there. But then why is the fourth factor not applicable to the Google case also? Google’s supplying the participating libraries with scans of the books in their collections displaced a potential market for the publishers supplying those scans. This is of some practical importance. Not long after the Google Library Project was announced, Penn State Press approached the University of Michigan Library with a proposal for the Library to have a greater range of rights to use the scanned version as licensed by the Press in exchange for the Library’s giving a copy of the Google scan to the Press so that the Press itself would not have to go to the expense of digitizing all of these books again. The Library was happy to agree to this proposal; Google was not and prevented the Library from doing so. Here, then, the “social utility” of this enterprise was directly undercut by Google itself. As a result, the Press and all other publishers whose books had been scanned by Google had to go to the expense of digitizing their own backlists. How does that kind of obstruction advance the progress of knowledge?
I have just scratched the surface here in offering this rebuttal. My arguments are laid out in much more detail in the attachments I provide. Two of these are also accessible at the web site where most of my writings about copyright are available: http://www.psupress.org/news/SandyThatchersWritings.html. The third is the gist of a talk I gave at a meeting of the Copyright Society of the USA last February in Austin, TX. It is there that I explore the deleterious implications of what I have called the “Ninth Circuit disease.”
As for the social utility of mass digitization, which most of us publishers are happy to recognize, it seems far better to have Congress legislate on that issue with a statute focused on it, rather than try to bring it under the ever expanding umbrella of fair use, where in my view it can only further contribute to the conceptual confusion that is already rampant.
I speak here, by the way, only for myself and not as a representative of any organization.
Since Judge Chin’s interpretation of “transformative” differs in significant ways from that of Judge Pierre Leval, who created the concept in a 1990 law review article (which then influenced the Supreme Court’s landmark 1994 decision in the 2 Live Crew parody case), this suit is far from over because Judge Leval will hear this case on appeal in the Second Circuit. (he was one of the three judges who overturned Chin’s previous decision and ordered him to rule on the fair-use issue.)
This is particularly interesting to note, since many observers (myself included) have read into the Second Circuit Court’s vacating of Judge Chin’s class-status decision a suggestion that they found Google’s fair-use defense to be at least credible, and perhaps even compelling. Given that Judge Leval sits on that Court, if this reading of the text of the Court’s rejection is accurate, it may have something to do with the fact that Judge Leval’s earlier writing on transformative use was issued 23 years ago—the Paleolithic Era of copyright law as it relates to the online information environment. (It’s possible, of course, that Judge Leval’s thinking hasn’t changed at all, but that a majority of the Second Circuit will uphold Judge Chin’s decision anyway.)
Both of those are real possibilities, so it will be interesting to see what the decision at the appeals level is. It will likely prove decisive to the future of the interpretation of “transformative use” and hence fair use in general, since that concept has become so central to jurisprudence in this field. If Judge Leval casts his lot with the Ninth Circuit approach (the one favored up to the most recent case), then I suspect that even the Supreme Court may go along. That would, in my view, be a mistake for the conceptual clarity of fair use and will make it even easier for judges in future cases to do what Georgia Harper has said happens often anyway, viz., that the judge decides on other grounds what the best outcome should be and then uses the four-factor analysis to justify that outcome. Judge Chin so obviously bought the “social utility” argument that he simply used his analysis to reach that conclusion. Of course, “social utility” is a very vague idea, and practically anything can be viewed as useful to the public by someone. Note that Judge Newman in the Texaco case previously in this same district did not buy the “social utility” argument. As for the ARL, will it want to press ahead with its further extension of the idea, thus opening the floodgates of e-reserves to copying whole scholarly books? That will lead to another test of the concept surely, and we’ll have to see whether judges decide then that the fourth factor should play a more decisive role. By that time, if we are lucky, scholarly publishing will have found a way to make the OA model work for monograph publishing. Otherwise, it will be curtains for university press publishing because presses cannot survive the destruction of their college adoption market for paperbacks.
Sandy, you are letting your distaste for the ARL Best Practices document get the better of you. There are clear differences in Google Books case and in any e-reserve consideration. Google’s copying to index clearly transforms the work and is also a transformative use (emphasis on use). E-reserves involve copying for consumptive use which does nothing to transform the work. Thus Judge Evans ruling sits very nicely along side Judge Chin’s.
What the ARL Best Practices document suggests, is that, depending on the work in question, copying for educational purposes, whether or not they are consumptive uses, might be transformative uses. That same document makes it clear that this would not apply to textbooks. So, again, it depends on the work. Thus this case has no hint of having an impact on the university press paperback market.
As for your point about transformative uses versus transforming the work, it is worth noting that Judge Leval was on the appeals panel that sent the case back for consideration of fair use, clearly hinting that the case would end there and that class status question wouldn’t t need to be considered.
It “clearly” transforms the work only if you ignore the second prong of the Leval notion of “transformative,” viz., that the very act of “tranforming” a work involves some kind of human creativity. The automatic application of a computer algorithm is no more creative than pushing a button on a photocopy machine, as Judge Newman recognized in the Texaco case. (The creation of the algorithm and the creation of the photocopy machine did, of course, involve creativity.) That is the key distinction that you seem to miss.
As for university press paperbacks, almost none of them qualify as “textbooks” under the ARL definition. They are almost all works of original scholarship meant to advance knowledge in their respective fields, not textbooks written specifically for an undergraduate audience. So, yes, the ARL interpretation would destroy the university press paperback market to the extent that the vast majority of those paperback sales go to classroom adoption.
Why does Judge Leval’s asking the district court judge to rule on the issue of fair use mean that the case would end there? Decisions are remanded all the time to the district level with their being no implication at all that there should be no appeal.
This is indeed an interesting conceptual confusion. I wonder what it’s issue tree structure looks like? It sounds like it is centered on the vagueness of “transformative” but there are several very different sub issues. Indexing and classroom use have nothing obvious in common. But then this is my first exposure to what is clearly a complex and important issue.
I explore the concept in some depth here, David: http://www.psupress.org/news/pdf/Transformative%20Use.pdf.
Your essay would make a nice starting point for an issue tree diagram, Sandy, especially because it explores some alternative judicial interpretations. But you do not seem to explore the counter arguments to your own arguments. Nor is the ARL classroom issue included, unless I missed that.
So it is basically a fragment of the overall issue tree, which is quite normal for any given essay. And in any case the tree structure is still invisible, since essays are simple strings of words, albeit divided into sentences.
That’s because I wrote that essay years before the ARL formulated its interpretation in its Code of Best Practices. Send me your e-mail address at firstname.lastname@example.org and I’ll send you my updated analysis referring to the ARL stance as delivered at a talk at a meeting of the Copyright Society of the USA earlier this year.
Reblogged this on deleuzianexcursus and commented:
it’s nice that this settled before I finished the dissertation… microfascisms, anyone?
Given the “significant public benefits” Judge Chin sees in Google’s scanning, does this mean Google has really become a public utility and thus subject to the public oversight we give other utilities? Whether you agree or not about the decision, if Google is going to be protected by this argument then it opens itself up to a host of public regulatory control.
I think it’s worth noting that “significant public benefit” is not, in and of itself, sufficient to defend a technical copyright breach as fair use. (After all, freely distributing pirated copies of the latest version of Windows would, arguably, offer the public a significant benefit — but it would be very unlikely to stand as fair use in the event of a lawsuit from Microsoft.) Judge Chin’s finding was based on a careful and detailed application of the traditional tests for fair use, all of which deal with issues extending beyond the question of public benefit. His conclusion that “all of society benefits” from the Google Books project follows from his fair use analysis, not vice versa.
I didn’t write the several books of mine Google have stolen because I wanted to give my work away. Judge Chin has given away my intellectual and other rights to an organisation devoted to profits – theirs, not mine. I regard this as unmitigated theft.
Ian, can you explain in what way you feel your books have been “stolen”? Given that Google has made their content available only for indexing (not for reading or copying or downloading), what do you believe has been taken from you? It seems to me that Google’s exposure of your books’ content to indexing programs can’t do anything except boost your sales.