The Authors Guild has lost the latest round of the copyright battle that it brought against Google more than a decade ago. And though the guild has decried the appellate court’s ruling as "damaging" to authors, it is nothing of the sort.
A unanimous U.S. Court of Appeals for the Second Circuit this month affirmed a lower court’s ruling that Google’s digitization of millions of books from research-library collections for purposes of indexing their contents, creating a full-text searchable database, and serving up snippets in response to search queries is a fair and noninfringing use of the copyrights in the books.
The guild argues that the ruling deprives authors of licensing revenues that were sought as a remedy for Google’s use of in-copyright books. But the appellate court was unpersuaded by the guild’s licensing theory, because, it said, what matters for purposes of fair-use analysis is whether snippets displace the market for books, which the court held they do not.
This decision, despite the guild’s claim, is actually a substantial boon for authors, especially scholarly ones, for at least four reasons.
First, the online project, called Google Book Search, has made it possible for researchers all over the world to find books that contain information of significance in response to search queries that Google users initiate. Google Book Search does precisely what the overwhelming majority of authors of books in research-library collections would want for their books: It rescues them from the obscurity of print collections and makes them more findable online.
The court noted that Google Books "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." The information that Google makes instantaneously available about relevant books "would otherwise not be obtainable in lifetimes of searching."
Google was, moreover, careful in designing the book search so that it would not supplant demand for books responsive to search queries. It included only small portions of responsive text, d excluded some works, and blocked efforts to use multiple search queries to get access to significant portions of books.
Second, Google Book Search has opened up new fields of scholarly research — data mining in particular — that create knowledge in a manner that promotes the constitutional purpose of copyright. The court pointed to Google’s Ngram research tool that "permits users to discern fluctuations of interest in a particular subject over time and space by showing increases and decreases in the frequency of reference and usage in different periods and different linguistic regions." The tool has enabled scholars to discover new things about their fields and to share their insights with others through scholarly or journalistic publications.
Third, Google Book Search may actually enhance, not hurt, the market for books in the Google corpus. This is because Google provides links to sites from which relevant books can be found or purchased. Snippet views are implausible substitutes for the original books. A user cannot recreate a meaningfully readable portion of a work by running snippet-view searches and aggregating the results. Snippets are most useful to help researchers discern which books are most pertinent to their queries. A search for "buffalo," for example, might yield some books about the animal, some about the city, and some about old nickels, so that researchers don’t waste time on the wrong books.
For many books — especially out-of-print titles that have little hope of being resurrected by publishers — the increased visibility and enhanced search capability that Google Book Search offers may enable users to discover these forgotten works and demonstrate their usefulness. This, in turn, may persuade publishers to have renewed interest in bringing out the books in new editions.
Fourth, the appellate court’s decision establishes a precedent that provides a meaningful shield for individual scholars, as well as archives, libraries, and historical societies that serve scholarly research communities, when they undertake mass-digitization projects for similar purposes.
Scholars and nonprofit institutions that service scholarly communities have mounds of materials they would like to digitize and make more accessible. Risks of copyright-infringement lawsuits have sometimes deterred socially valuable digitization efforts. Google’s win in the Authors Guild case reduces this risk significantly (especially since the court held that the guild cannot bring claims of copyright infringement against anyone except with regard to works whose copyrights it owns).
The Authors Guild has announced that it intends to seek Supreme Court review of the Second Circuit’s fair-use ruling. I predict that the high court will not review the case, in part because it takes so few cases and in part because the decision was crafted to be consistent with previous Supreme Court rulings, with decades of other legal precedents applying the fair-use doctrine, and with the constitutional purposes of copyright law.
However, in the unlikely event that the court takes the case, it will very likely affirm the earlier finding The appellate court built a solid foundation for its fair-use ruling by emphasizing the "fragmentary and scattered nature" of snippet revelations, the substantial technical restrictions built into Google Book Search, and the guild’s failure to show "a meaningful or significant effect" upon the market for the books at issue. Moreover, digital-humanities scholars and organizations such as the Authors Alliance, of which I am a founder, will file amicus curiae briefs to explain to the court that we support Google’s fair-use defense because of the substantial benefits it provides to authors.
Pamela Samuelson is a professor of law at the University of California at Berkeley and chair of the Board of Directors of the Authors Alliance.