Google’s legal winning streak continues with last week’s decision by the Second Circuit Court of Appeals, which rejected the Authors Guild’s appeal of the dismissal of its lawsuit against Google over the latter’s massive book-scanning project.
I won’t take up space here recapping the timeline of this now-ten-year-old legal saga – there’s a pretty good summary at Wikipedia. But I’d like to share some thoughts about the rejection of the Authors Guild’s appeal.
First of all, the appeals court’s central finding is that “the defendant’s copying is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579-585 (1994), does not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfies § 107’s test for fair use.”
Why? Because the copying that Google did involved something very different from the photocopying, file-“sharing”, or home taping activities that have given rise to so many previous important copyright lawsuits. Google was not simply creating a bunch of new copies of books, intended to be used in the way the originals are. But this issue goes beyond Google’s intentions. More important, I think (and apparently more influential on the appellate court’s decision in this case) is the fact that the resulting database of digitized books simply cannot be used the way the original copies of those books can be used. No one can read the copies contained in the Google Books corpus; what you can do is search their content and locate terms, and in most cases see very brief snippets of the text.
In other words, Google’s use of the copyrighted works was, in the court’s view, clearly transformative for precisely this reason: what were once books have been transformed into databases — or, more accurately, a single massive database — which offer tremendous public benefit without posing any significant threat to the rights or legitimate interests of copyright holders. Access to the Google Books corpus is not, by any reasonable standard, the same thing as access to the books themselves, and therefore doesn’t constitute a competitive substitute for them. That makes all the difference in the world when it comes to determining fair use.
But wait. Google is a highly profitable commercial entity. How can its wholesale copying of copyrighted texts, undertaken for an explicitly commercial purpose, possibly be considered fair use? Here the court points out something that many of us in libraries have tried to help students, faculty members, and sometimes even publishers understand for many years: the fourfold test for fair use doesn’t contain any trump tests—fair use is determined by considering the proposed use holistically. Professors and students who take the “Purpose and Character of Use” test for a trump card and therefore believe they can do anything they want with copyrighted works as long as the use is educational are falling victim to this misunderstanding, but the same is true of copyright holders who believe that fair use is always fatally undermined by commercial reuse. As the court puts it in this decision, “Our court has… repeatedly rejected the contention that commercial motivation should outweigh” an otherwise convincing fair use argument. In this case specifically, “we see no reason… why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use.”
But wait. The plaintiffs in this suit aren’t only concerned about what Google is doing intentionally with the digitized books, but also about what might happen if someone were to hack into Google’s server, copy the books, and then do things with those copies that genuinely infringe on the copyright holders’ prerogatives. In response to this concern, the court noted that Google has stored its digital scans “on computers walled off from public Internet access and protected by the same impressive security measures used by Google to guard its own confidential information.” While the court allowed that the plaintiffs’ concern in this regard is “theoretically sound” (since it describes a scenario that could actually take place) it felt that the likelihood of that fear being realized was too low to warrant a finding in the plaintiffs’ favor.
But wait. What about the digital copies that Google left with their library partners? For one thing, the libraries themselves might make infringing use of the copies; for another, the copies held by libraries aren’t protected by anything like the industrial-strength security measures Google can afford. The court recognizes the possibility that libraries might fail to live up to their copyright obligations either by active infringement or by negligent handling of the copyright materials, and observed curtly that if they should do so, “such libraries may be liable to Plaintiffs for their infringement.” In the meantime, “the possibility that libraries may misuse their digital copies is sheer speculation” and no basis for a finding against Google.
Here’s something I think will be interesting to watch: many in my profession are every bit as suspicious of Google, its motivations, and its plans for our information future as they are of the motivations and plans of publishers. What will be the library profession’s response to this finding?
Some responses are already coming in: laudatory quotes from the American Library Association, the Association of College & Research Libraries, and the Association of Research Libraries — all members of the Library Copyright Alliance — are compiled (for attribution) here. The California Digital Library likes it too. So far, it looks like my colleagues mostly agree with me: this finding is a win for Google, for libraries, and for researchers.
The Authors Guild may not believe it, but on balance it’s almost certainly a win for authors and publishers as well.