
Google wins book-scanning case: judge finds “fair use,” cites many benefits - japaget
http://gigaom.com/2013/11/14/google-wins-book-scanning-case-judge-finds-fair-use-cites-many-benefits/
======
grellas
Law in general, and copyright law in particular, may be applied mechanically
or it may be applied with insight, and the results can vary widely depending
on which approach is used.

There is a lot in copyright law that would have allowed a judge to reject
Google's fair use defense almost out of hand, as it were. Google had the
temerity to copy some 20 million copyrighted works without the authors'
permission. It did not limit itself to copying select portions for some
discrete educational purpose but copied every work in its entirety. And it
used those copies in a for-profit enterprise to enhance its business and
advance its profitability. Taken as a whole, such factors would have allowed a
court to conclude that the uses Google made of the copyrighted works readily
failed to meet the requirements of the fair use defense and thus left the book
industry, in effect, frozen in an early 20th century analog world.

Judge Chin, however, is obviously a judge who knows how to apply the law with
insight and this shows him to be an outstanding jurist. Rather than applying
the law mechanically, he stepped back to first principles and thought through
very carefully how the copyright law ought to be applied in order to fulfill
its intended purpose - that is, as set forth in the Constitution, in order to
promote the arts and sciences.

His decision goes through the Copyright Act's four statutory factors primarily
used for determining whether a fair use defense exists or not but is grounded
in something far deeper than those factors. Yes, Google's use of the copied
works was "highly transformative" and this weighs heavily in favor of a
finding of fair use (first factor). Yes, the nature of the copyrighted works
is that they are all published works and mostly non-fiction, and this too
weighs in favor of fair use (second factor). Yes, the amount of copying is of
entire works but Google offers search results in carefully controlled
snippets, and these factors combined weigh slightly against fair use (third
factor). Yes, the effect of the copying on the market or value of the
copyrighted works actually enhances the sales of books for the copyright
holders by increasing their visibility and making them accessible to potential
buyers, and this too favors a finding of fair use.

All this is true, and is pretty carefully analyzed in the decision. But, in
the end, this technical analysis is merely the backdrop for what primarily
motivated the judge's decision and that was his overwhelming sense that laws
must be applied in light of their intended purposes and not used to choke off
the results that the very law in question was intended to further.

In other words (and these are my words and my assessment and not the judge's),
it is ludicrous in an increasingly technological world that society should not
benefit from a project so stupendous as that of a private party investing
enormous resources to transform millions of obscure works of literature into a
treasure trove of searchable materials made freely available to users of all
types, including those who have historically been physically impaired from
using them at all, and all the while taking all reasonable steps to ensure
that these materials are offered in a way that respects the legitimate
concerns of the copyright holders. Copyright gives authors substantial rights
to control what is done with their works. It prevents others from exploiting
such works commercially without their permission. But this has never prevented
others from making fair use of those works for educational goals and the like.
In educational settings, it has been possible for a long time now to copy
quite freely from copyrighted works for class projects and the like. Such
copying is deemed fair because, while not significantly impairing the true
commercial rights of copyright holders, it furthers the progress of arts and
science. And that is the point of what Google is doing here with its books
project. In ways for which many are deeply thankful, it is using all the
resources of modern technology to add huge value to otherwise dormant
copyrighted works and to use the resulting product in ways that truly advances
arts and science. If copyright should be used to defeat that sort of project,
then it undercuts the very rationale upon which it exists in the first place.
Though if applied merely mechanically, it might be used for such a purpose, it
_ought not_ be used that way. And that is, in essence, what Judge Chin
concluded.

Here are his words on this point: "In my view, Google Books provides
significant public benefits. It advances 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. It has become an invaluable research tool that permits
students, teachers, librarians, and others to more efficiently identify and
locate books. It has given scholars the ability, for the first time, to
conduct full-text searches of tens of millions of books. It preserves books,
in particular out-of-print and old books that have been forgotten in the
bowels of libraries, and it gives them new life. It facilitates access to
books for print-disabled and remote or underserved populations. It generates
new audiences and creates new sources of income for authors and publishers.
Indeed, all society benefits."

This is a soundly reasoned decision that is a highlight of modern law not so
much because of any deep legal reasoning as such but because it profoundly
captures and applies the spirit of the law in ways that comport with modern
technological advancement. The decision protects innovators such as Google
while upholding in every fundamental the legitimate interests of copyright
holders. In this way, it upholds the traditional framework of the law while
allowing it to be sensibly applied to new developments. There is nothing
revolutionary here. But it is an encouraging sign that courts are able to
adapt to the times and is thus a highly positive development.

~~~
cft
This is all good, but if it were not Google with its 200 in-house lawyers, but
some bootstrapped startup out of Austin, TX that had the temerity to copy 20
million copyrighted books, would judge Chin apply the same constitutional
insight?

~~~
jrochkind1
What we can say is that with the Google case as a precedent, it makes it a
heck of a lot more likely that a judge faced with similar use from a
bootstrapped startup out of Austin will find for fair use, next time.

~~~
WildUtah
Indeed, when the big powerful behemoths work to improve the world instead of
stagnating and monopolizing it, great things can happen. This case is a great
example where Google did something no startup would be able to get away with
and fought a multi-year battle to make it work.

It's hardly the only example, though. IBM did hard work to defend Linux
against Microsoft and SCO's attacks. Apple cracked the carriers' line against
useful smartphones with unlimited data, 30% instead of 90% carrier cuts in app
stores, and freedom from spyware and crapware; Jobs' sales pitch to AT&T was
as big an innovation as any tech in the iPhone. Google fights for net
neutrality, fair use, and free speech on the internet. All the big players
were active in the effort to organize the users of the internet against SOPA,
too.

But the big players can also be destructive. Smartphone patent wars are a
danger and a disappointment. If the major players would turn their Washington
efforts to our common best interests, we could have excluded software entirely
from patent monopolies by now. It certainly would have saved them many
billions to do the right thing. Instead they fight to a standstill in courts
at great expense and leave startups endangered and exploited in their path.

So let's hope for more of this in the future and tip our hats to Google and
Judge Chin this time.

~~~
wavefunction
I'm not so "thankful" to Google or Judge Chin as you, since you seem to be
arguing that "if you're big enough to do whatever you feel like, do it!!!"

Just another example of the "taking economy" that seems so popular these days
among the short-sighted.

~~~
jrs99
this must truly be for the public good. I doubt Google can profit off the data
from millions of books of well-written, gramatically correct writers of the
english language.

------
ChuckMcM
That was a nice turnaround. The earlier decisions by Chin had me thinking he
had already decided for the Authors Guild (so tempted to say AG there but that
reads 'attorney general' sigh).

Now the next question is whether or not the Authors will come back to the
table in being willing to let Google give them money for selling an out of
print scan of their book to someone. That should be a no brainer "hey money
you would not otherwise get!" but as we've seen there is never enough free
money to make it worthwhile.

~~~
TillE
As much as I desperately want out-of-print books to be available, I really
didn't like that court case. The idea of a small group of authors being
allowed to negotiate away the rights of authors everywhere to one party only
(Google) is absurd.

This is something that really needs legislative action.

~~~
kamjam
I don't understand why. Any other company now (presumably) has the right to
digitally offer out of print books too. No one else wants to do it, either out
of lack of motivation, cost or potential revenue. You can't blame Google for
that, this is a massive step forward for society.

It's not really a win for free markets if you now need to legislate.

~~~
waqf
I believe GP is talking not about this decision but about what would have
happened if
[https://en.wikipedia.org/wiki/Google_Books_Settlement](https://en.wikipedia.org/wiki/Google_Books_Settlement)
had not been shot down in 2011.

This outcome allows everyone to digitize out-of-print books, whereas the
settlement would have granted Google a monopoly on them in exchange for a fee
to the Authors' Guild.

------
peterwwillis
Consider that copyright originated as system with which to control people. The
types of control sought were those of monetary, and thought/expression of
thought.

Monetary control goes back to antiquity, where copying a book required
expensive literate slaves to copy a book for about the same price as
publishing one. Thought and expression control goes back to the censorship
systems of the church, who sought to prevent critical dissent via restricting
publishing using licenses - later termed a "monopoly".

These two systems were then combined in practice. Not only were the
printers/publishers restricted and licensed, but what they could print or
reprint as well. This control over what was published not only served the
church and/or state's interests in enforcing dogmatic or state law, but also
the monetary interests of the original publishers of a work. In essence, the
publisher and the government form a pact to ensure each other's mutual
interests, at the expense of the common citizen.

It wasn't until 1710 that the game changed. The Statute of Anne ushered in not
only the destruction of publishing monopolies, but the argument (in form of
law) that "protecting" a work from copying was primarily an incentive for
scholars to keep churning out more works - the argument summarized as: _" Why
would learned men compose and write useful books unless there was financial
incentive?"_ Flash forward to today, and that's basically still the same
argument used by anyone lobbying for copyright of anything. If it's copied and
nobody gets paid, nobody will make anything [intellectual/creative/etc]
anymore.

Consider how amazingly specious this argument is today. Look at Wikipedia.
Look at YouTube. Look at all the works being published under all the
subversive licenses that are intended to surmount the aged limitations of
copyright law. Do we really care to restrict what content you can produce, or
if someone gets paid for it? More and more the arguments are about simple
attibution, or freedom of use, than anything else.

All this decision finds is that the copying of books is by and of itself no
longer a harmful act. But we've known that for decades.

~~~
res0nat0r
The ruling doesn't allow wholesale display of said books on books.google.com
though.

~~~
peterwwillis
.....So?

~~~
res0nat0r
So I hope you aren't implying above that this ruling states that is now legal.

~~~
peterwwillis
Nope.

------
tn13
We can endlessly argue over the correctness of this decision but I am little
surprised that authors guild actually sued Google for this. It is like website
owners suing Google for crawling, indexing and increasing visibility of their
website.

Clearly, what Google had done was beneficial for the entire book industry.

May be the Authors guild was more interested in some kind of rent seeking
rather than actually protecting anyone's interest. I am sure even that must
have been noticed by the judge.

~~~
jrochkind1
Well, it was seven years ago they filed the suit. But yeah, they sure are
sticking to it.

> It is like website owners suing Google for crawling, indexing and increasing
> visibility of their website.

Yeah, that happened.
[http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Google_Inc.](http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Google_Inc.).

~~~
jrochkind1
oh yeah and it wasn't the only time either:
[http://www.techdirt.com/articles/20121213/08013521375/belgia...](http://www.techdirt.com/articles/20121213/08013521375/belgian-
newspapers-agree-to-drop-lawsuit-over-google-news-after-google-promises-to-
show-them-how-to-make-money-online.shtml)

------
x3c
>The decision also comes as a major volte-face for Judge Chin... that the
higher court (on which he now sits) wanted him to acknowledge fair use.

I find it very disheartening. The reasons given by the judge are very fair and
convincing. If it's true that he ruled this way because higher court wanted
him to acknowledge fair use, judge was not objective.

I wonder if his stance, now or previously, was politically motivated. Let's
wish that the judge came to this decision solely on the merits of arguments
for/against "fair use". The alternative is depressing to think about.

~~~
jrs99
i don't think the reasons are convincing. I don't think that it benefits the
public is a good reason.

~~~
treerock
So what is your view on the law? Those with a utilitarian view would probably
say that what 'benefits the public' is really the main aim of the legal
system. I take it you disagree?

~~~
dragonwriter
Usually, whether something benefits the public is a policy question for the
legislature, _not_ a decision for the courts to make. OTOH, many specific laws
include public interest considerations that require courts to make
determination of at least some aspect of public interest to apply the law.

~~~
fpgeek
And, in this case, the pubic interest aspect comes from the US Constitution
("promote the progress of science and useful arts").

------
blackoil
Is this Google only or anyone e.g. Microsoft and Amazon, can also now start
scanning/distributing books?

~~~
x3c
I'm not sure but since this ruling took place in higher courts, lower courts
now have a precedent set. Similar cases will tend to lean this way, unless
exceptional circumstances.

~~~
ghaff
It's probably worth mentioning that this is a decision made in a specific
circuit but the general point still applies.

------
DonGateley
Can an author choose to opt in to Google selling suitably protected full
copies with royalties?

This could be great for authors since Google will have already have done all
the hard work of creating the electronic object and providing availability.

------
cscurmudgeon
Google should open up their search codebase.

All the benefits cited for book scanning will apply here too. Come on Google.
We know you can do it :)

Nobody will deprive Google of any revenue. It will have lots of public
benefits.

------
droopybuns
> Chin also rejected the theory that Google was depriving authors of income,
> noting that the company does not sell the scans or make whole copies of
> books available. He concluded, instead, that Google Books served to help
> readers discover new books and amounted to “new income from authors.”

Fire up your torrents. We have a new precedent for the legality of file
sharing. As long as the pirates aren't selling you the files, they're helping
you discover new movies!

~~~
res0nat0r
Nope. If your torrent only contains a single page from each chapter maybe, but
wholesale copying is still against the law. You can't read entire books on
Google Books.

~~~
estebank
What if 100 person independently loaded one page of a 100 page book?

The full work is available, but no individual can be blamed with infringement
under your interpretation.</devils_advocate>

~~~
macspoofing
These kinds of tricks hardly ever pass muster. The law isn't that stupid.

------
Aldo_MX
I would love if in the future Google (or any other company) begins selling
digital editions of books that can only be acquired in paper. Digital books
are the future.

~~~
TillE
I'd be happy enough if they were only allowed to do that for out-of-print
books. If you've pursued an interest in nearly any area of history, you'll
know that there are tons of books that are still in copyright but quite
difficult to find.

~~~
Aldo_MX
To be honest, with out-of-print books I don't care about copyright and I just
simply photocopy them, if the publisher wants my money they should reprint the
books or release them digitally.

IMHO the copyright should get voided when the work gets out of circulation,
but copyright will be extended as long as required to prevent Mickey Mouse to
join the public domain...

------
mgunes
For a contrasting perspective to the technology-centric, access-oriented view
of "public benefits" that is typically dominant on HN, see the documentary
"Google and the World Brain":

[http://www.worldbrainthefilm.com/](http://www.worldbrainthefilm.com/)

------
baldfat
As a former Librarian I approve and my former colleagues for some weird reason
disapprove :(

------
Nitramp
Eight years for the process. That legal systems seems thoroughly broken.

~~~
DannyBee
(Sadly, i can't comment on the decision itself, but i can comment on the meta-
arguments here :P)

Eight years for large, insanely complex litigation involving hundreds of
thousands of pages of documents does not seem that thoroughly broken.

Also, judges have a large number of these complex cases on their dockets at
once, because the US in general thinks lawsuits are great way to resolve
normal disputes.

This is why most courts order mediation/settlement talks etc in these complex
cases (and there was a settlement, it just wasn't approved).

TL;DR If you want serious efficiency, asking it from a bunch of overworked
judges trying to oversee a large number of complex cases seems a bit much.
They do what they can, and try to get folks to resolve out of court, but often
parties just want their day in court, and that takes time.

~~~
Nitramp
I think you just listed a whole bunch of reasons _why_ that legal system is
broken.

It's IMHO quite questionable whether such a law suit must be insanely complex
and involve hundreds of thousands of pages of documents. And then
subsequently, why judges have to be overworked, etc.

~~~
DannyBee
"It's IMHO quite questionable whether such a law suit must be insanely complex
and involve hundreds of thousands of pages of documents."

There is essentially some minimum amount of documentation necessary to resolve
a lawsuit. For something that involves a class of many thousands of
plaintiffs, works, and claims, needing essentially 10 pages per person (or
whatever) is just not a lot.

I mean, do you expect Google search to be 50 lines of code?

Also note that part of the purpose of discovery is to get everyone's cards on
the table. You are often required to produce any possibly relevant info, which
in this day and age, includes large volumes of emails. The whole goal here is
that there should be no surprises, and hopefully, the dispute should be
resolvable without going to trial once everyone's hand is shown.

Judges are overworked because the judiciary is underfunded. We are too busy
making useless tanks to add to the collection we have in the desert.

------
Mikeb85
Personally, I prefer paper books anyway. E-books don't provide the same
experience.

Also, what Google provides is no different than what you get from going into a
store and flipping through the book's pages. It's good for the consumer (to
know what they're getting) and for the author. Paper book sales would likely
be lower if they were all encased in plastic prior to sale...

~~~
toomuchtodo
I don't want to go back to a world where I can't carry my entire book library
(3K+ books) on a Kindle with me.

~~~
Mikeb85
What would be really nice is a world where you buy the paper book, and get the
e-book with it. I like my oversized book shelf at home, but taking books with
you is also convenient.

~~~
toomuchtodo
Agree 100%. I see us getting closer to this with Amazon's Matchbook program.

------
drakaal
I read this to say that Piracy is legal if you don't charge for it. There is
no difference between putting a full book on line and a full movie. This won't
stand for long, MPAA wouldn't have lost this case. Authors are just not as
well organized.

~~~
ncallaway
"I read this to say that Piracy is legal if you don't charge for it."

This statement is not accurate. See my prior post about the four factor test
for Fair Use. The judge ruled that this specific use (which doesn't distribute
full books online) was fair use. Putting a movie online would almost certainly
fail the Fair Use test.

This case is far too complex to be summed up as "Google putting full books
online".

------
falcolas
META: 84 upvotes and no comments? Something smells fishy...

~~~
eterm
Many upvotes aren't organic votes but instead are duplicate submissions which
each count as an upvote for the first submitter.

OT hijack: This can lead to news from popular sources being submitted because
they are known to generate lots of votes. This leads to lots of people trying
to be first to submit which leads to them getting lots of "upvotes", which
further contributes to that source being known for upvotes. This leads to
certain sources now always appearing regardless of the merit of the actual
articles.

~~~
ChuckMcM
Interesting side effect action there. I wonder if re-submit votes should be
damped in some way. One might use the length of time of the submitting account
(avoid spammers who create an account and submit the same day, or create
several accounts in one day and all submit the same article (although that one
is caught by the software))

~~~
eterm
Part of the problem though isn't that it's artificial accounts generating
deliberate spam or shilling, it's disparate uncoordinated users each doing
what they think will boost their karma.

If I know that every codinghorror post gets to front page, I know that if I
spot a new coding horror post I should submit to HN to get the karma. In an
effort to be first I shouldn't check if it's previously been submitted, I
should just submit.

Therefore I will submit. If it turns out I'm not the first I'm just upvoting
the article, if it turns out I am first I "win" a lot of karma.

There's no way to differentiate between a genuinely interesting coding horror
post that is getting submissions from people because it's a good post (of
which there are many) and between a coding horror post that is getting
submissions because people expect them to get submissions.

After a while, even low quality sites that are known to have people who post
them for this effect can get trapped into this cycle.

This isn't an effect of spammers, it's an effect of a community who know how
each other behave.

If you can't differentiate between this and more "genuine" activity then you
cannot dis-incentivise the activity you wish to prevent.

