Understanding Fair Use

Re:  Authors Guild v. Google, Inc.,13-4829, 2nd Cir. , Oct. 16, 2015

In a case that likely has one more stop along the way, the Second Circuit has issued its opinion in Authors Guild v. Google that relates to the Google Books project and the considerations of Fair Use.

As per the opinion:

Google has made digital copies of tens of millions of books, including Plaintiffs’, that were submitted to it for that purpose by major libraries. Google has scanned the digital copies and established a publicly available search function. An Internet user can use this function to search without charge to determine whether the book contains a specified word or term and also see “snippets” of text containing the searched-for terms. In addition, Google has allowed the participating libraries to download and retain digital copies of the books they submit, under agreements which commit the libraries not to use their digital copies in violation of the copyright laws.

In a simplistic view: Google has put millions of books online. But it is important to understand some key facts in this case, which include:

The Google Books search function also allows the user a limited viewing of text. In addition to telling the number of times the word or term selected by the searcher appears in the book, the search function will display a maximum of three “snippets” containing it. A snippet is a horizontal segment comprising ordinarily an eighth of a page.
      . . .
Google also disables snippet view entirely for types of books for which a single snippet is likely to satisfy the searcher’s present need for the book, such as dictionaries, cookbooks, and books of short poems. Finally, since 2005, Google will exclude any book altogether from snippet view at the request of the rights holder by the submission of an online form.

While it is true that Google has placed millions of copyrighted books online, it does not allow the viewers to read them, only to find out whether or not they might want to read them. As was critical in this case:

Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value …

Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.

So the simplistic view is that Google is allowed to put millions of books online, but the proper understanding is that Google has created the world’s most effective card catalog to allow people to search and find books they may want to read, without making the books themselves available to read online.

After pages of tortured analysis of facts and factors, it all comes down to:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. . . .

Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

There will be the inevitable confusion as many books on the Google Books project are available online in complete form, but it needs to be understood that the copyrights in those books have expired or been waived by the authors, thus they are properly free to the public.

For the full text:  Authors Guild v. Google, 13-4829

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