Google Wins Fair Use Argument in Book Search Lawsuit

On Thursday, November 14, 2013, eight years after the Authors Guild sued that Google Book Search violated the rights of authors, Judge Denny Chin finally handed down his decision (PDF) on the lawsuit. The Internet giant’s project to scan millions of books held by academic libraries was found to “[advance] 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.” Advocates of fair use are applauding Judge Chin’s decision. Brandon Butler, formerly Director of Public Policy Initiatives at the Association of Research Libraries (and a co-facilitator in the development of the ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries), calls the decision “a powerful affirmation of the value of research libraries.” The Library Copyright Alliance, which last year issued an amicus brief in the case, quoted leaders of library organizations in a press release issued yesterday:
“ALA applauds the decision to dismiss the long running Google Books case. This ruling furthers the purpose of copyright by recognizing that Google’s Book search is a transformative fair use that advances research and learning.” – Barbara Stripling, president of the American Library Association
“This decision, along with the decision by Judge Baer in Authors Guild v. HathiTrust, makes clear that fair use permits mass digitization of books for purposes that advance the arts and sciences, such as search, preservation, and access for the print-disabled.” – Carol Pitts Diedrichs, president of the Association of Research Libraries
“I echo the comments of my colleagues that this ruling, that strongly supports fair use principles, enables the discovery of a wealth of resources by researchers and scholars. Google Book search also makes searchable literally millions of books by students and others with visual disabilities. This is a tremendous opportunity for all our communities.” – Trevor A. Dawes, president of the Association of College & Research Libraries
Inevitably, the Authors Guild has already announced its plan to appeal the decision. And some critics, while perhaps not siding with the Authors Guild, have questioned Google’s motives in embarking on the project – readers’ privacy is uncertain, for example. Google has also been criticized for providing low-quality or sometimes just incorrect metadata for the books it has scanned. But having access to such an enormous textual corpus, despite its flaws, is a boon for researchers working in the field of natural language processing — Brandon Butler lauds the decision as “a victory…for transformative, non-consumptive search” — as well as for the visually disabled.

Faculty as Authors, Faculty as Researchers: What You Need to Know About the Google Book Search Settlement

Note: This is a longer version of an article that appeared in the Libraries’ most recent faculty newsletter. Google Book Search started in 2004 as a project to digitize and make available online millions of books held by a group of major university libraries. The plan was to digitize everything but only make fully available those books that were in the public domain, that is, no longer protected by copyright law. The books that were still under copyright would be presented in “snippets” – a few sentences displaying a user’s search terms in context, but the entire work would not be made available online. Copyright holders would also be given the option of granting permission for their work to be made freely available in its entirety, or for a limited preview (more extensive than the “snippet” view) to be made available online. In 2008, a group of authors and publishers initiated a class action lawsuit against Google, who they claim violated their copyrights by scanning and digitizing published works without permission. Google denied any wrongdoing, claiming that its actions are covered by the concept of “fair use” in U.S. copyright law; however, it decided to offer a settlement to the group of authors and publishers rather than having the suit go to trial. If you are the author of a book published in the United States (or a chapter in such a book) before January 5, 2009, you need to know how the Google Book Search Settlement affects you. First, determine whether you or your publisher holds the copyright to your book. If you hold the copyright and want to receive payment for the inclusion of your work in Google Book Search, or exclude your work entirely from Google Book Search, then you must “claim” your work or works at the Google Book Search Settlement administration website by June 5, 2010. If your publisher owns the copyright to your book, then the publisher gets to decide if it will be included in Google Book Search, and it will be entitled to the rights holder’s financial compensation. Some argue that the Google Book Search settlement, if approved, sets a dangerous precedent in its handling of what are called “orphan works” – books still in copyright and for which the rights holders cannot be identified or located. The Department of Justice submitted a “statement of concern” that Google would have the potential to monopolize the commercial market for these works. Google submitted a revision of the proposed settlement on November 13, 2009, which contained provisions for an independent trustee to represent the missing rights holders and removing some of the barriers to other companies licensing content digitized by Google. However, the fact remains that access to these works may change over time. This affects you as a researcher, as do the provisions of the settlement that limit full-text access and printing capabilities. Google’s mission is “to organize the world’s information and make it universally accessible and useful” – but in the case of Google Book Search, just how that will happen is still uncertain. Recommended Reading “About Google Books” “Google Book Search” “Google Book Search and the Future of Books in Cyberspace” “The Google Book Search Settlement: A New Orphan-Works Monopoly?” “Google Book Settlement” “Google Books Settlement: Key Players Comment” “Will Your Book Be in Google?”

On this evening’s Google Books Settlement Discussion at the Boston Public Library

“The future is here, but it doesn’t come to everyone at the same rate.”– Hal Abelson, MIT

In a nutshell: there seemed to be three major issues of concern (or queasiness as they echoed to each other) that the panelists (and the moderator) had, sans the Face of Google guy, Daniel Clancy.  Monopolization of the books market, access to library users and concerns of cost to libraries, commercialization of orphan works and the transformation of written culture.  Regarding the monopolization issue, John Palfrey of Harvard Law School, said “game over” if the settlement is ruled favorably.  He claimed that no one else will have the incentive to compete against Google in the digital books market.  Palfrey is also concerned regarding orphan works (works whose copyright owner cannot be found after an effort) and what will happen to orphan works legislation as a result of the Google Books settlement decision.  Palfrey and Anne Wolpert of MIT, also expressed ‘queasiness’ over the commercialization of orphan works.  Wolpert talked about the pricing model of Google Books.  She explained that individuals could subscribe, that libraries could have one dedicated terminal with access to the Google Books project, or libraries could subscribe to the entire corpus.  She took issue with the undefined pricing, which Dan Clancy said would adjust to the market.  Wolpert’s key point was that libraries have been burned in the past by publishers who had a monopoly on literature in specific fields.  She also made the point that libraries have paid some of the costs in the development of the corpus that is Google Books, as well as taxpayers supporting public libraries.

Personally, I agree with the points made.  Regarding orphan works, it is my understanding that identifying, digitizing and making acccessible more orphan works is to the greater good of society (and will ultimately help to identify previously unknown copyright holders).  However, the difference between a project like the Open Library Project through the Open Content Alliance and Google Books is that the latter seeks a profit.  My lingering question is to those libraries that signed up with Google Book Project.  Did they think about the greater long term ramifications to society of one business potentially controlling 40 million volumes of our nation’s great libraries, before making a deal with a company whose philosophy Hal Abelson claims, is “Manifest Destiny”?

Library Architecture

I recently came across this slide show on Slate, titled “How do you build a public library in the age of Google?” It’s an interesting tour of current library architecture, and the different ways cities are trying to adapt libraries into popular public spaces. What do you think? Do you have a favorite public library? How does the building design play into your appreciation? I know I prefer smaller libraries, and sometimes I find some modern architecture a little too sterile for my taste. In any event, I still plan on checking out books for a long time to come!

The Universal Library: Not As Close As You Think

This recent New Yorker article gives a lovely overview of the progress we’ve made, as humans, in digitizing our intellectual output. You may notice that the article’s author, Anthony Grafton, is a clear library supporter, as all good and right-thinking people are. However, even if libraries aren’t your cup of tea, Mr. Grafton makes clear the sheer scale of effort that truly “putting it all up on the Web” entails. As any of our researchers in pre-1900 areas know (Poole’s Index, anyone?) the bulk of our intellectual heritage is not digitized. Who’s going to digitize it? And who’s going to organize the resulting mass of stuff so it’s usable?