Google Book Scanning Case Dismissal Being Appealed

By Todd R. Weiss  |  Posted 2014-04-17

Google Book Scanning Case Dismissal Being Appealed

Google is back in the legal crosshairs of the Authors Guild over its practice of scanning books so that their content can be searched online.

In a 67-page legal brief, the Guild has appealed a U.S. District Court decision from November 2013, when a judge dismissed the Guild's claims against Google and halted a legal battle that had begun in 2005.

In its appeal, filed on April 11, the Guild argues that Google began and accelerated its practice of scanning the books to battle and overwhelm online competitors such as, which in 2003 reached agreements with myriad publishers to display partial texts of published works. The Amazon scans and resulting online displays of text from the books were meant to entice buyers to purchase the books being cited, the appeal contends.

"Amazon's Search Inside the Book program threatened Google's dominance as the place people go to find information," the appeal states. "But Google found a way to beat the competition by scanning copyright-protected books without permission from rights holders. This way, it would avoid having to negotiate with publishers and authors—as Amazon did— about critical issues such as the extent of permitted text display, the security of the books and reasonable compensation."

Soon after, in December 2004, "Google struck back, shocking the literary community by launching its unprecedented 'Library Project,' through which Google partnered with some of the world's largest libraries to gain free access to millions of copyright-protected books," the appeal states. "Google emptied the shelves of libraries and delivered truckloads of printed books to scanning centers, where the books were converted into digital format. The resulting e-books were then copied onto Google's servers and ingested into its search engine. Google was savvy enough not to pay the libraries in cash for the incredible commercial advantage it gained from these books. Instead, it provided the libraries with e-books worth millions of dollars as payment for their participation in the Library Project."

The Google Library Project "was designed to lure potential book purchasers away from online retailers like Amazon—a website focused on selling books—and drive them to Google, a website focused on selling advertisements and keeping the resulting revenue," the appeal states. "Google's conduct also exposed the authors' works to new and serious security risks by converting their print books into digital format, storing the resulting e-books on multiple servers connected to the Internet and distributing millions of additional copies to the libraries, all without any promises to prevent loss of their property in the event of a data breach."

In a statement, Roxana Robinson, the president of the Guild, said: "Authors and authors alone have the right to decide whether and how their books are converted to e-books. Yet in its effort to gain commercial advantage over competitors, particularly Amazon, Google chose to usurp that basic right, putting authors' works and livelihoods at risk. Without the permissions that Amazon had painstakingly acquired for its Search Inside the Book program, Google digitized authors' works in order to lure book buyers away from online booksellers to its turf, seeking to bring countless eyeballs to its ads. Google is yanking readers out of online bookstores."

Instead, she argued, "There's a far better way forward. Congress should create a National Digital Library that would be available at every campus and in every community. Libraries, research institutions, authors and corporations can all coexist peacefully, but the first step is to stop the theft of books."

Such a National Digital Library could be established by Congress, similar to ASCAP for music, so that digital rights licenses could be issued for out-of-print books, according to the Guild. "Authors, publishers and other rights holders would be paid for the use of their works, and they would have the right to exclude their books from any or all uses."

A Google spokesperson told eWEEK that "Google Books was created as a tool to help people identify the most useful books to buy or borrow. It acts like a card catalog for the digital age and does not substitute for the reading of a book but makes them discoverable in a way that was never before possible, which is great for users, authors and publishers alike."

Google Book Scanning Case Dismissal Being Appealed

The Guild's appeal comes five months after it lost the earlier decision to Google last November in a New York courtroom. In his decision, U.S. Circuit Judge Denny Chin dismissed the lawsuit filed by The Authors Guild and several individual authors, ruling that he "accepted Google's argument that its scanning of more than 20 million books, and making 'snippets' of text available online, constituted 'fair use' under U.S. copyright law," according to an earlier Reuters report. Chin's 30-page ruling countered allegations by the plaintiffs that Google's book scanning processes harms publishers and authors.

"Google does not sell its scans, and the scans do not replace the books," Chin wrote in his decision. "While partner libraries have the ability to download a scan of a book from their collections, they owned the books already—they provided the original book to Google to scan.

"Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion," Chin continued in his ruling.

Instead, wrote Chin, "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."

Google began digitally scanning some 20 million books back in 2004 so that Web searchers could find sections of them in searches, according to an earlier eWEEK report. The practice was quickly and vehemently opposed by critics, who argued that the practice is copyright infringement without payment. The battle has been in the courts since 2005, with at least two proposed settlements coming and going since 2009. The case was heard again this past September, which resulted in Chin's latest ruling.

Google lawyers have consistently argued that the fair-use provision of the Copyright Act shields it from liability for infringement. Google had argued that the materials are an extension of fair use, while opponents argued that the scanning amounted essentially to theft of the materials.

Google faced more than $3 billion in potential damages if it was found guilty of scanning the materials illegally.

The first proposed settlement came back in 2008 between Google and opponents, but Chin ultimately rejected it, according to a previous eWEEK report. Chin, who was also the judge in that case, ruled at the time that the proposed agreement would give too much power to Google at the expense of competitors. The U.S. Justice Department said the deal might violate antitrust and copyright law, which prompted Google to revise that original settlement in November 2009.

Another settlement attempt came in September 2011, but it again did not succeed. Google and the plaintiffs had been at the bargaining table since March 2011, when Chin struck down a deal that would let the search giant scan and store millions of "orphaned" works. Orphaned works include titles that are out of print and whose authors can't be found or are unknown. Chin said then that the deal "would give Google a de facto monopoly over unclaimed works" and deemed it unfair to rights' holders whose copyrighted works would be served online without their permission.

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