
Fair use prevails as Supreme Court rejects Google Books copyright case - coloneltcb
http://arstechnica.com/tech-policy/2016/04/fair-use-prevails-as-supreme-court-rejects-google-books-copyright-case/
======
jsjohnst
I very likely am biased as my primary income doesn't come from my written
literary works, but as a published author, I simply don't get the PoV of the
publishing/music/movie industry. Just because you published something doesn't
mean you should be paid for every single possible usage of it for the rest of
your life.

I know this isn't an Apples to Apples comparison, but imagine where tech would
be today if you were paid a royalty every time something you produced was used
in any form. Every time that header bar you wrote for Google back in 2006 is
reused, adapted, extended, whatever, you got a >1% royalty on. It's simply not
sustainable and I feel is why these "content" industries will ultimately fail.

I'm pretty vocally negative about many things Google does, but as a long as
the continue their current course with this platform, I simply can't support
the author's guild's "sky falling" hyperbole.

~~~
rayiner
> Just because you published something doesn't mean you should be paid for
> every single possible usage of it for the rest of your life.

If you created something, why shouldn't you get paid every time anyone uses
it? Why should anybody have _any_ rights to a specific thing you created,
other than the ones you give them?

~~~
harryh
For the same reason that you (correctly) use to justify high taxes on high
earners. No one works alone. Much of the work that people produce is actually
the work of the society that surrounds and enables them.

~~~
rayiner
That's a fair point, but I'm not a big fan of taxing specific things versus a
general tax. If I make a bunch of money by selling books, fine, tax me on it.
But it doesn't give you rights to my books, or to cut across my lawn...

~~~
harryh
While it takes money to run a society it also takes ideas. So it makes sense,
at some level, to collect tax payments in the currency of ideas.

------
teddyh
> _In the long run, the ruling could inspire other large-scale digitization
> projects._

This is, for me, the important bit. Previously, Google was alone in having
done this, and had an effective _monopoly_ on all the information in the whole
world's books. This was (and still is) not a good situation for the rest of us
to be in. Now, I would hope for Wikimedia and/or the Internet Archive to ramp
up similar book scanning projects.

~~~
greglindahl
The Internet Archive has scanned 2.2 million books, and we hope to scan
700,000 more by the end of this year.

That data is what is behind [https://blog.archive.org/2016/02/09/how-will-we-
explore-book...](https://blog.archive.org/2016/02/09/how-will-we-explore-
books-in-the-21st-century/)

------
greglindahl
This is a pretty awesome finish to this series of court cases. Here's one
example of a tool positively affected by this court case:

[https://blog.archive.org/2016/02/09/how-will-we-explore-
book...](https://blog.archive.org/2016/02/09/how-will-we-explore-books-in-
the-21st-century/)

------
gabemart
Does anyone know why the Author's Guild has pursued this case? Do they have a
good-faith belief that they are losing potential revenue from a "licensed
search" market? Or is it simply a precedent case for them?

Edit: [https://www.authorsguild.org/where-we-stand/authors-
guild-v-...](https://www.authorsguild.org/where-we-stand/authors-guild-v-
google/) is somewhat helpful in understanding the Author's Guild's position,
particularly that they reached a settlement with Google in 2008 that was later
rejected by the court

~~~
Natanael_L
Like I said elsewhere, it feels like intellectual territorialism (partially
wordplay on "intellectual property rights").

They feel threatened by just about any use of anything under their umbrella
that they have not yet explicit approved. They want to be gatekeepers not just
for the products, but for what you get to do with them.

They want to control the market including both discoverability and which
business models that may be used.

You can see the same behavior most prominently in the movie industry and in
how they treat video services and apply their "release windows", including the
enforced DRM. Look up bluray licensing too, and how they handle even the
patent licensing both for players and disc distributors.

------
chris_wot
Fair use is not as straight forward as many people think it is. I remember
having to grapple with it when I was an admin on Wikipedia as the only known,
decent quality photo of J. D. Salinger was nominated for deletion.

I chose to keep after examining the arguments and applying my knowledge of
U.S. Fair Use doctrine. Fair Use is codified in 17 U.S. Code § 107 -
Limitations on exclusive rights: Fair use [1] - basically there are four
things that must be taken into consideration; purpose of work, what it is
being used for (e.g. educational use, criticism that involves reproducing part
of the work), the amount that is used and whether it would impact upon the
market or value of the work.

If anyone is interested, my reasoning for the J. D. Salinger decision can be
found in the Wikipedia archives [2].

1\.
[https://www.law.cornell.edu/uscode/text/17/107](https://www.law.cornell.edu/uscode/text/17/107)

2\.
[https://en.wikipedia.org/wiki/Wikipedia:Files_for_deletion/2...](https://en.wikipedia.org/wiki/Wikipedia:Files_for_deletion/2010_January_28#File:JD_Salinger.jpg)

------
reacweb
Google wants to feed their AI with all the humanity knowledge. Providing a
service to users is just a byproduct of their quest for the singularity ;-)

~~~
Gargoyle
OK, sure. But shouldn't Google compensate their sources???

~~~
AnthonyMouse
Presumably somebody actually bought a copy of each scanned book.

Aren't we just getting back to the same deal as the people who wanted Google
to pay them to link to them? They were all screaming about how Google was
making money on their backs. Even passed a law about it in a couple of
countries. Then Google says OK, we're not going to pay you, we'll just stop
linking to you. Suddenly everybody in one of those countries strikes a "deal"
with Google where Google goes back to linking to them in exchange for no money
whatsoever.

The main difference with printed books is that so many of them are orphan
works that nobody even knows who the copyright holder is, so the default being
the opposite of what everybody actually wants means that all of those works
actually disappear out of the index.

Which is why I suspect the publishers want it that way. Then _they_ can opt-in
to being indexed but without all the competition from orphan works, works with
uncertain copyright status, works by smaller entities that don't know how to
opt-in, etc.

Either that or it's like the news sites and they just don't realize how stupid
the thing they're asking for actually is.

~~~
Gargoyle
Well, no. Google did not in fact purchase a copy of the book they're making
money on.

So you do think Google should make billions from the minds of others without
compensation.

Before you accuse me of hyberbole, you used the term "screaming".

~~~
AnthonyMouse
> Well, no. Google did not in fact purchase a copy of the book they're making
> money on.

The books they scanned weren't purchased? Google broke into the publishers'
offices and stole them?

> So you do think Google should make billions from the minds of others without
> compensation.

That is the business model of every advertising company in existence. Also
mapmakers, phone companies, movie critics, etc.

~~~
Gargoyle
So Google compensated the publishers?

Are you sure???

~~~
AnthonyMouse
You are presumably trying to make some kind of point out of the books scanned
from libraries. But unless you're claiming that the _libraries_ stole the
books... $20 is $20.

~~~
kaybe
With that kind of reasoning - unless you steal from the publisher right off
the press somebody has already paid for the book, no? Even bookshops can only
get refunds if they at least return the cover page, afaik.

Additionally, if you steal from the right person, they might just go and buy
another copy.

~~~
sangnoir
> With that kind of reasoning - unless you steal from the publisher right off
> the press somebody has already paid for the book, no

That is correct - this is well established in US case law as the "Fist sale
doctrine"[1]. Meaning once bought, the book can be lended, resold, or scanned.
However, I believe the Authors Guild was going for the copyright angle, and
they lost.

1\. [https://en.wikipedia.org/wiki/First-
sale_doctrine](https://en.wikipedia.org/wiki/First-sale_doctrine)

------
jessriedel
It's unfortunate that the ArsTechnica coverage is heavily slanted toward
Google, and SCOTUSblog's against, to the point where it's hard to recognize
the two articles as describing the same case. Neither makes a good-faith
effort to square the two viewpoints.

SCOTUSblog coverage:

> The challengers, in their appeal, argued that the lower court decisions
> awarding Google a summary victory deviated sharply from the traditional view
> that one who copies a protected creative work can only claim the legal
> defense of “fair use” if the copying satisfies the four factors that
> Congress spelled out in federal law.

> What happened in this case, the challengers argued, was that lower courts
> permitted Google to rely upon its claim of “fair use” by inventing a new
> legal concept — that is, so long as the one who makes copies “transforms”
> the work into another, culturally useful mode, then it is legal. That, the
> guild and the authors asserted, “empowers judges to approve any re-use of
> copyrighted works that those judges deem socially beneficial.”

[http://www.scotusblog.com/2016/04/googles-book-copying-
proje...](http://www.scotusblog.com/2016/04/googles-book-copying-project-
survives-challenge/#more-241616)

The Fair Use factors:

> 1\. the purpose and character of the use, including whether such use is of a
> commercial nature or is for nonprofit educational purposes;

> 2\. the nature of the copyrighted work;

> 3\. the amount and substantiality of the portion used in relation to the
> copyrighted work as a whole; and

> 4\. the effect of the use upon the potential market for or value of the
> copyrighted work.

[https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors](https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors)

From the Author's guild:

>Google argued, and still argues, that its book-search program (now called
Google Books) offers great public benefits and therefore the copying should be
protected under the legal doctrine of “fair use.” We do not believe that
private companies should be able to make full digital copies of copyrighted
books en masse for commercial purposes under the fair use doctrine—that is,
without compensating the rightsholders. So the authors, publishers, and Google
sat down to reach a compromise. A proper solution, we believed, would allow
readers to benefit while also making sure that authors and publishers got paid
for Google’s use of their work.

> After 30 months of talks, we reached an agreement in October 2008: Google
> would pay out $125 million. Some would go to the owners of the books that
> were scanned without permission; the rest would fund the Book Rights
> Registry, an organization that would track down and distribute fees to
> authors. Google would be able to display out-of-print books to users and
> charge licensing fees for copyrighted works. Also, the settlement required
> Google to provide portals in every public library and more than 4,000
> colleges and universities in the U.S., allowing widespread access.

[https://www.authorsguild.org/where-we-stand/authors-
guild-v-...](https://www.authorsguild.org/where-we-stand/authors-guild-v-
google/)

~~~
magicalist
> _> The challengers, in their appeal, argued that the lower court decisions
> awarding Google a summary victory deviated sharply from the traditional view
> that one who copies a protected creative work can only claim the legal
> defense of “fair use” if the copying satisfies the four factors that
> Congress spelled out in federal law._

It's weird that SCOTUSblog parrots that line from the Author's Guild so
credulously. It's never been true that all four factors must be satisfied to
some imagined threshold, and in fact that four factors are qualitative by
design.

> _We do not believe that private companies should be able to make full
> digital copies of copyrighted books en masse for commercial purposes under
> the fair use doctrine—that is, without compensating the rightsholders._

By that argument, no web search engine could practically exist either.

------
TazeTSchnitzel
Yes, Google are only showing users small snippets. That's probably fair use.

But what arguably might not be is Google scanning entire books en masse in
order to get to the point where they can do that.

~~~
xbmcuser
Well it was argued and the courts decided with Google. So it is no longer
arguable.

------
Gargoyle
Is it fair use when Google uses an entire scanned work in a machine learning
project that leads to commercial gain?

That to me is a far trickier question...

~~~
greglindahl
You might want to familiarize yourself with the 4 factor test:

[https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors](https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors)

Many "fair use" usages lead to commercial gain.

~~~
Gargoyle
Sure, but that's not the only factor in my thought experiment.

For example, "The third factor assesses the amount and substantiality of the
copyrighted work that has been used. In general, the less that is used in
relation to the whole, the more likely the use will be considered fair."

Using a work in its entirety surely must factor in.

~~~
greglindahl
You might want to read this next:

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2606731](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2606731)

TL;DR: "usage" by computer algorithm is quite different from showing a
copyrighted work to a human.

~~~
Gargoyle
Thanks for the link to the paper, I'll comment on what I find to be relevant
in it in case it is of use to others.

There is a part re Sega v Accolade that brings up the interesting sub-topic of
"intermediate copying", which is legal, but then says it's legal because it's
“the only way to gain access to the ideas and functional elements embodied in
a copyrighted computer program.”

But wholesale scanning of entire works is not the only way to gain access to
the ideas of books. It's also possible to purchase copies from the publishers.

Perhaps a bit more relevant- "Accolade was not using Sega’s games for their
protected expressive content, but simply to extract some unprotected,
functional, nonexpressive information contained within them"

I think that would be debatable in certain machine learning projects. Perhaps
much of it would fall under that category, but a large part of the point would
in fact be to extract the expressive information contained in them.

What I'm trying to get at is related- Google (and other machine learning
giants) is making an effort to extract the _expressive_ content of these
works. That's different from what we've seen in the past.

To me, at least, it feel like it's worth asking if it's right that the people
who produced that expressive content should not be compensated for it.

~~~
Natanael_L
It gets murkier by the fact that so much is out of print and never have been
OCR'd even by the author or publisher. Copies just can't be bought for much of
it.

Also, increasing discoverability through being searchable feels like it should
pass under fair use. Can't make it searchable without a digital index, and an
index can't be made without scanning!

