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Friday, 29 April 2016

The end of the Google Books legal saga

A few days ago the US Supreme Court refused [here] to grant certiorari in the long-running battle between the Authors Guild and Google over the latter's Books Library Project [Katposts here].

Katfriend Shalini Bengani (Competition Commission of India) explains what happened. 

Here's what Shalini writes:

"Authors Guild has been on a collision course with Google Book for over a decade since they first filed their copyright infringement suit on 20 September 2005, seeking declaratory and injunctive relief and statutory damages on behalf of a purported class. 

The Court of Appeals for the 2nd Circuit [here] in 2015 rejected the Authors Guild’s claim that in his 2013 decision Judge Chin in US District Court for the Southern District of New York [here] had applied an excessively expansive approach to the fair use doctrine.

In a thorough opinion by Judge Leval, the 2nd Circuit explored the facts of Google Books’ digital copying, its search function and limited snippet display of petitioners’ works. The arguments in favour of Google Books project were overwhelming. Therefore, the 2nd Circuit concluded that Google Books is entirely consistent with the purposes of copyright law and fair use in fact, advances the interests of authors. In effect, this means that as users we can continue to benefit by scrounging for books of interest online, and this appears in line with the needs of digital age.


So what is Google Books? Not that you don’t know but just in case......


In response to a search query, Google Books provides the user with a list of books that contain the chosen search term and (in many cases) information about the immediate context in which the term appears. It also informs the user where they can buy or borrow the book.

In 2004 Google entered into bilateral agreements with 11 major research libraries to make digital copies of books in their collections. Those collections included novels, children’s books, and books of poetry, but the “vast majority” of selections were “nonfiction, and most are out of print.” Many of the books are in the public domain, but Google also made digital copies of books that remain in copyright.


For each book, Google made a digital scan and extracted machine-readable text by using optical character recognition technology. By doing so, Google was able to create a comprehensive index of the books’ texts that can be searched by users. All of the files involved in the process are securely stored on servers that are not accessible from the  Internet and are protected by the same security systems that protect Google’s own confidential information.


After entering a query, a user can click on a particular search result to see an “About the Book” page for the chosen book. “About the Book” pages include links that allow the user to buy the book and to find the book in a nearby library when that is possible. Those pages do not contain advertising (other than bookseller information), and Google receives no payment in connection with the “buy the book” links.


For certain titles, Google Books displays up to three short snippets of text—each approximately one eighth of a book page— in response to user queries. Those tiny segments give users some minimal contextual information to help the searcher learn whether the book’s use of that term will be of interest to her. By reviewing snippets containing the searched term, a user can often determine the relevance of a book to his/ her interest in a way not possible with earlier methods such as a card catalog or bibliographic index.


Google Books places several restrictions on snippet view that ensure that the snippets cannot be used as a substitute for buying or borrowing the book itself. No more than three snippets are displayed in response to a search query, even if the same search term appears elsewhere, and Google Books always displays the same snippets in response to a given search term, no matter how many times the search is run. Google also “blacklists” (ie, makes unavailable for snippet view) at least one snippet per page and one page out of ten per book. And there are additional technological restrictions to prevent automated downloading of snippets. These features substantially protects against its serving as an effectively competing substitute for Plaintiffs’ books.


Google Books does not offer snippet view for certain types of books, such as dictionaries, cookbooks, and short poems, where there is a risk that access to a small portion of the book could be a substitute for the book itself. Authors/right holders wary of Google Books have a choice to opt out.


The agreements between Google and each library permit the library to download and retain a digital copy of each book it has submitted for scanning.


Judge Pierre Leval
The decision

The Court of Appeals for the 2nd Circuit analysed Google Books project under the fair use factors articulated in 17 U.S.Code § 107, both separately and in combination, noting that the statute’s four factors are not to be treated in isolation but are to be weighed together, in light of the purposes of copyright. Further it noted that the first and fourth factors warrant greater weight.


First factor: Purpose and Character. The court analyzed whether Google Books supersedes the objects’ of the original creation, or instead adds something new, with a further purpose—that is, whether and to what extent the new work is ‘transformative. The court explained that a transformative use is one that communicates something new and different from the original or expands its utility and accordingly, concluded that Google Books’ search and snippet functions are highly transformative.


Second factor:  Nature of the copyrighted work. On its own, this factor did not influence the court's analysis; the court might have weighed that factor in favor of Google, since most of the works in Google Books are factual, not fiction, but it did not do so.


Third factor: Amount and substantiality of the portion used in relation to the copyrighted work as a whole. The court explained that digital copying of the totality of the original is literally necessary to achieve Google’s transformative purpose of enabling search. If Google were to copy less than the totality of the originals, then its search function could not be able to advise searchers reliably whether their searched term appears in a book. In fact it was noted by the 2nd Circuit that in spite of the plaintiffs’ counsel employing researchers over a period of weeks to do multiple word searches on plaintiffs’ books, in no case were they able to access as much as 16% of the text. Further, it was observed, that Google has constructed the snippet feature in a manner that substantially protects against its serving as an effectively competing substitute for plaintiffs’ books. Moreover, the snippets collected were usually not sequential but scattered randomly throughout the book.


Market assessment
Fourth factor: Effect of the use upon the potential market for or value of the copyrighted work. The  ourt found no evidence of any significant harm to the market for petitioners’ books, since they were unable to show that any amount of searching could yield more than a small fraction of a book’s text. The court explained that the petitioners’ copyright interest in their books does not include an exclusive right to supply information (of the sort provided by Google) about their works.  The  ourt held that although snippet view may from time to time satisfy “the searcher’s need for access to a text,” an occasional lost sale does not constitute “a meaningful or significant effect ‘upon the potential market of the copyrighted work.’ The court noted that in nearly a decade of litigation the Petitioners had failed to introduce evidence of a single lost sale attributable to Google Books.


Finally, the  ourt rejected petitioners’ claims that permitting the libraries to download digital scans of their own books constituted infringement: “Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Hence, the Court of Appeals properly rejected petitioners’ assertion that they suffered economic harm because Google Books somehow preempted their right to license their books for search uses. The court clarified that the exclusive right that the petitioners sought to preserve is not one that copyright protects: The copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply information about their works through query of a digitized copy."


Review under Campbell v Acuff-Rose framework

The court reviewed the purpose and character of Google Books’ uses under Campbells framework. It drew a distinction between providing information about a book and appropriating the content of that book. The Court was of the view that Google Books is a well-intentioned project as  is highly beneficial to all since it augments public knowledge without providing the public with a substantial substitute for matter protected by the plaintiffs’ copyright interests in the original works or derivatives of them. Further, snippet view enables identifying of books of interest to the searcher by way of revealing just enough context surrounding the searched term to help a user evaluate whether the book falls within the scope of his/her interest.


Drawing a parallel with the Campbell case, the court held that a poetic parody may be “new creative expression,” but so is a search tool that tells would-be readers what books are relevant to their interests in light of their own search terms. Petitioners’ contention that no use can be transformative unless it alters the content of the original work did not find any support in the court and it was held that this rigid approach to fair use ignores Campbell’s warning against “simplification with bright-line rules.”


Google Books is nice and everything,
but what better place
to sleep while in the library
than an actual book?
Commercial character is “not conclusive” in a fair use determination

The court was also of the view that the 2nd Circuit rightly concluded that the fact that Google is a commercial business does not outweigh the dramatically transformative character of Google Books. It was rightly explained in the Campbell case that the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.


My take

While I was a law student in India, I was required to search for books in a physical library and the resources therein were few and far between. Searching manually took a lot of time but with Google Books, every student, researcher, lawyer, academician stands to benefit as it brings them to the book at the click of a mouse and also the authors close to their target audience. Therefore, I for one, cannot extol enough the virtues of the Google Books project. 

The goal of Google Books is to make the life of every researcher or avid book reader much easy. The Google Books litigation outcome augers well for the reading/researching population. This case has certainly brought delight  to researchers all over the world but dismay to the Authors Guild."

2 comments:

Hector MacQueen said...

Is the opinion discussed that of the Supreme Court or rather, as it appears to be, that of the 2nd Circuit? If the Supreme Court issued an opinion as well as an order, I for one would be interested to see it.

Ashley Roughton said...

Nice take Eleonora.

A

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