Google Wins Ruling in Digital Book Scanning Lawsuit

By Todd R. Weiss  |  Posted 2013-11-15

Google Wins Ruling in Digital Book Scanning Lawsuit

Google's nine-year-old project to scan millions of published books so that they can searched online by Internet users has been ruled to be legal by a New York judge, ending a case that has dragged through the courts since 2005 even as the technology landscape has continued to change.

In his decision, U.S. Circuit Judge Denny Chin dismissed a lawsuit filed by The Authors Guild and several individual authors, who alleged that Google's book scanning project infringed upon the rights of authors without compensating them for their work, according to a Nov. 14 story by Reuters.

Chin "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," Reuters reported.

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."

Paul Aiken, executive director of the Authors Guild, told Reuters that the group will appeal Chin's decision. "Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works," Aiken told Reuters. "Such mass digitization and exploitation far exceeds the bounds of the fair-use defense."

In a statement to eWEEK, Google said it is pleased with the court's ruling. "This has been a long road and we are absolutely delighted with today’s judgment," said a company spokesman who asked not to be identified. "As we have long said, Google Books is in compliance with copyright law and acts like a card catalog for the digital age, giving users the ability to find books to buy or borrow."

Dan Olds, the principal IT analyst with Gabriel Consulting Group, told eWEEK that he was initially surprised by the court's decision because he "expected that Google was going to get their hands slapped pretty solidly" for its scanning efforts. But instead, Chin ruled that Google is "simply scanning [books] and then acting sort of like a search engine," which is what the company's business is all about. "This can also be viewed as an extension of what Google does in everything else, and not just by Google, but by any Website that aggregates any data out there."

What's particularly interesting, said Olds, is that since the lawsuit was originally filed in 2005, the Internet landscape has changed a great deal, with huge amounts of data online for people to use, refer to and consume. "Look how far things have come," said Olds. "If this [scanning] were starting today by Google, I don't know if this lawsuit would have been filed."

Nowadays, if a project like this would begin, Olds said he believes that publishers and authors would realize that such a practice is inevitable and would reach some kind of payment agreements that would be workable for both sides. In such an agreement, any revenue would likely come from users, he said.

Google Wins Ruling in Digital Book Scanning Lawsuit

Another analyst, Rob Enderle, the principal analyst of Enderle Group, told eWEEK in an email response that Chin's decision suggests he "thinks that content owners are going too far to protect content and that fair use can be applied here to protect Google."

The original idea of fair use was "never intended to destroy the content's value, but neither was it intended to allow content owners to profit from every aspect of their creation," wrote Enderle. "That means a balance must be maintained by the courts and, in this instance, the courts favored user rights over content owner rights.  I think the Authors Guild basically failed to show adequate harm and the argument that the majority of the use for this activity has no impact on the purchase of books, most of which were perceived to be languishing unread in libraries."

That makes sense, because "as long as you aren't putting the book in readable form online, thus eliminating the need to buy the book, fair use should hold and that appears to be the ruling in this instance," wrote Enderle. "This ruling will likely have broader implications for content because it potentially strengthens the successful use of fair use as a defense substantively."

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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