Finally a Fair Use Finding for Google's Library Project

I have been teaching a small seminar course on information fluency every spring since 2006. It’s a two-credit course for juniors and seniors who want to know more about where information comes from, what libraries do with it, and where things are going with information. During all of those years we've talked about the lawsuit that, Google has been engaged in over its library book scanning project. When Jeffrey Toobin  wrote about “Google’s Moon Shot” for the New Yorker back in 2007, he predicted that the lawsuit would result in a settlement which would give Google an unprecedented advantage over everyone else who might want to make books searchable. I feared he was right. 

 

That didn’t happen. We dodged a bullet when the settlement was tossed out, and we dodged an even bigger bullet when a judge last week accepted Google’s motion for summary judgment and dismissed the case, finding what Google did with library books a fair use. 

 

This is not a just a Google victory, it’s a huge victory for libraries, scholars, and the general public, and it’s the latest case in which courts (unlike Congress) have demonstrated as much care for the “progress of science and the useful arts” as for rights holders’ (not so) limited monopolies. 

 

This has been an amazing decade when it comes to making the content of books part of what we can search electronically. In 2003, Amazon unveiled “search inside,” a mind-blowing project to digitize and make searchable the full contents of hundreds of thousands of books for the first time. At that time, publishers and Amazon weren’t locked in a death struggle. Publishers were mostly happy with it. Authors mostly didn’t know about it because nobody asked them. Amazon and publishers figured that, between them, they had all the rights they needed. I remember the day it launched checking on books by our faculty and emailing them to say “hey, did you know your books can be browsed online at Amazon?” and they were mightily perplexed by it all.

 

Google tried to play catch-up by introducing Google Print in 2004, inviting publishers to make their books searchable through their popular and powerful search engine. Publishers were mostly indifferent. After all, Google was not a bookseller. What was in it for them? “Discovery” wasn’t quite such a common concern back then, and publishers were uneasy about discovery that involves putting digital copies of books into other companies’ hands. 

 

So Google did something audacious. They got a small number of large academic libraries to agree to let their books be scanned. Like the Amazon “search inside” program, it was an arrangement made in secret so that it could be launched dramatically as a fait accompli. It made the prime location on page A1 above the fold in the New York Times on December 14th of that year. Libraries aren't usually featured in that spot. It was a big deal. 

 

But was it legal? At first, I assumed it probably wasn’t. Google made a fair use claim, though, and as I learned more about it, I found it persuasive and hoped it might prevail. It’s not that different than copying websites, which are just as much under copyright, in order to index them. The Web has a simple convention for those who want their webpages left alone: robots.txt. Otherwise, if you publish on the web, you don’t object to the copies that are made in order to make an index that works. Sounds fair, right?

 

Of course, many people thought books are different and that it was an outrageous violation of copyright law. Some of them brought suit. The audacious attempt to define what fair use means when it comes to digitizing analog works became a very complex settlement, put together by Google with publishers and the Authors Guild (which has a tiny membership compared to the entire class of authors, whose interests it feels it represents). This would mean authors and publishers would get a piece of the action (because by this time, Google was, in fact, becoming a bookseller like Amazon), and they would also get a piece of sales of “orphaned works” – works with uncertain copyright status or untraceable rights holders, which is a huge percentage of all published books. That issue got kicked around for a while, with large chunks of Google Books being dropped out because US copyright law doesn’t cover all the books included in the project. Finally, in March, 2011, the court threw the entire settlement out as an overreaching arrangement that was not “fair, adequate, and reasonable.”  

 

Since then, publishers quietly came to an agreement with Google, but the Authors Guild, once the settlement was off the table, declared the whole thing illegal again and brought suit. Last Thursday, the judge who has presided over this case all these years just explained in beautifully clear terms why digitizing library books in order to make them searchable is legal, based on a four-factors fair use test, and why it’s good for all of us, authors included.

 

The Author’s guild has appealed, of course, but I’ll be going into class this spring with greater optimism that we have a fair use ruling that will stand, one that opens the door to more access to digitized books through platforms other than Google’s.