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Google wins book-scanning case: judge finds “fair use,” cites many benefits (gigaom.com)
500 points by japaget on Nov 14, 2013 | hide | past | web | favorite | 147 comments



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.


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?


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.


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.


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.


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.


If that small startup had presented the case similarly to the 200 in-house lawyers, probably yes, he would have.

The 200 lawyers aren't some magic wand you wave at judges, the 200 lawyers work together to come up with a fantastic argument for whatever it is you're trying to accomplish.

The fact that it was Google may have made the judge realize that this is the kind of thing that could change the world more quickly than if it had been a no-name startup, but Google's track record of blowing the doors off of innovation is something they've earned, not bought (necessarily).

I just don't think it's really a criticism of Google that they won this case at all.


You say "change the world."

Change can be for the worse as well, you realize?

And your claim about the Judge deciding this differently because it was Google rather than Aaron Swartz Jr. All plaintiffs are supposed to be equal under the law, so whether it's Google or LoneCoder the ruled result should be the same.

Starting to understand how the world got to be as f'd up as it is reading these HN comments...


> 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?

You mean the same constitutional insight that led him to neglect fair use and decide against Google, only to be reversed on appeal by the Second Circuit which ordered him to do it right?

Yeah, he probably would have done exactly the same if it had been Joe Startup and not Google. Whether Joe Startup would have survived through the process long enough to get to the Second Circuit without being forced to settle and give up is a different question.


Yea-- I agree. Plus, Google did this at a time when people where still debating digital media. I agree with the ruling out of self interest.


Honestly, a good decision is a good decision, and I'm not going to worry too much about who in particular was able to argue it.

Had it been a small non-profit, or some bootstrapped startup, they may have been able to get cheap representation via the EFF or some other group that defends the public interest.


> Had it been a small non-profit, or some bootstrapped startup, they may have been able to get cheap representation via the EFF or some other group that defends the public interest.

And they very likely would have lost.

I think that cft is insinuating that the law is not the same for the wealthy and well-connected and the poor.


the law is not the same for the wealthy and well-connected and the poor

Precedent-setting may not be for the lone wolf without a nickel to his name, but it's rare in any ecosystem that the penniless loner can turn around as monstrous a ship as the US legal system.


I would guess that depends on how well that startup's lawyers argued the case. Considering how Judge Chin felt about this before the arguments started (he was somewhat skeptical that this was fair use) and how much effort he put into his judgement, I would say Google's lawyers did a fair amount of work explaining to the judge why they were doing this, what the benefits to society were, and how they're controlling it to be of benefit to the copyright holder.


A valid point.

Perhaps what's compelling here is that Google's core business is not selling books, that they have super-sized legal resources and that they chose to devote siginificant resources to this even when it does not appear to contribute much to their bottom line.

Would you feel better if Google had the donated funds to libraries to allow them to scan their collections and to defend themselves against any legal challenges? Honest question.


i'd feel better if Google had asked each owner of the copyrighted material for their permission to scan the book.

It's the copyright owner's choice to be in a program that may increase sales. If he wishes to decrease sales, that is also his choice and should have the right to opt out.

data is extremely valuable. The data of millions of books many of which have been edited by professionals is really priceless for a corporation like Google.

I won't be surprised when Apple, Microsoft and Facebook start their own "platform" to help out the public and help out authors by increasing sales by showing the public their works.


I think this simply amounts to "damn, this thing by Google is copyright infringement if we altered the law to allow it that means we allow a lot of stuff that Warner and Sony don't want us to do ... so we're just going to pretend this is 'fair use'".

In other words the Judge seems convinced that it's crazy not to allow it. But that says nothing about what statute actually allows.

My view is that Google have gone way over the mark - the correct response is to change copyright law; and indeed to shorten terms vastly whilst they're at it. But politically parties in the US are presumably getting a lot of money from media companies and so democratisation of copyright with a return to the idea of it being about benefiting the public domain simply isn't going to happen.


Fair use and the factors for determining if something constitutes fair use are part of case law going back centuries, and copyright for the public good has been held up for just as long (in spite of setbacks like the extension of copyright length and the anti-circumvention sections of the DMCA).

To your specific suggestion for the future, fortunately Congress codified fair use back in the 1970s, so the "four factors" enshrining fair use are absolutely found in copyright law:

http://www.law.cornell.edu/uscode/text/17/107


Yes, but the judge isn't just using a shoe-horn to fit Google's actions in to fair use he's using a car compactor.


That just means that everyone in the US just got a free car compactor for their own free use arguments. You should be rejoicing.


I don't think most of us are capable of committing tortuous infringement at a level to make it comparable with Google. Nor are we capable of extracting the value in that to make it financially profitable to do.

Personally I'd rather the law be altered explicitly rather than allowing ad-hoc alterations to accommodate massive corporations.


My apologies for accidentally hitting the downvote button (why is it so close to the upvote button and why is there no undo).


That all makes sense to me, and I use Google Books a lot, whatever my misgivings about Google in general (and I have many).

But what I still find hard to stomach is the notice that the put on page zero of every PDF of books, even those in the public domain:

    Google is proud to partner with libraries to digitize public
    domain materials and make them widely accessible. Public domain
    books belong to the public and we are merely their custodians.
    Nevertheless, this work is expensive, so in order to keep
    providing this resource, we have taken steps to prevent abuse
    by commercial parties, including placing technical restrictions
    on automated querying.
Doesn’t this read to you like a kind of hostage-taking of this material? What they’re saying is, “We paid a lot of money to digitize this material. Therefore, even though it ‘belongs’ to you, the public, we designate ourselves as simultaneously (a) distinct from the public and (b) non-abusive. So, you can use this thing that ‘belongs’ to you, but you may do so according to our rules. Otherwise we will take it back from you.”

Note that they make no statement that in the even that they do discontinue the service, that they would also cease to use the materials for their own internal purposes. To me, these statements together do not amount to testimony that Google believes these documents are “public”.

    We also ask that you: 
    + Make non-commercial use of the files
    We designed Google Book Search for use by individuals, and we
    request that you use these files for personal, non-commercial
    purposes.
But they can, since they have more money than individuals. They didn’t “design” it for individuals. They decided that it was not for their competitors. It’s a clear statement that they believe they have unique commercial rights in this “free” content.

    + Refrain from automated querying 
    Do not send automated queries
    of any sort to Google’s system: If you are conducting research
    on machine translation, optical character recognition or other
    areas where access to a large amount of text is helpful, please
    contact us. We encourage the use of public domain materials for
    these purposes and may be able to help.
Whether they actually do that, I don’t know.

    + Maintain attribution 
    The Google “watermark” you see on each
    file is essential for informing people about this project and
    helping them find additional materials through Google Book
    Search. Please do not remove it.
Or?

Relevant: http://www.youtube.com/watch?v=BAaoHX9KiWY

    + Keep it legal 
    Whatever your use, remember that you are
    responsible for ensuring that what you are doing is legal. Do
    not assume that just because we believe a book is in the public
    domain for users in the United States, that the work is also
    in the public domain for users in other countries. Whether a
    book is still in copyright varies from country to country, and
    we can’t offer guidance on whether any specific use of any
    specific book is allowed. Please do not assume that a book’s
    appearance in Google Book Search means it can be used in any
    manner anywhere in the world. Copyright infringement liability
    can be quite severe.
And, although we’ve reserved unique rights for ourselves, implicitly excluding you from a wide array of uses of material that “belongs” to you, we also transfer liability in using “your” things to you. But don’t remove our watermark, or else.

It’s just so much backstabbing doubletalk.


The material itself belongs to you. The servers it is hosted on belong to Google. You are free to access public domain material and do what you want with it, but Google has every right to limit how you access their servers.


More specifically: public domain gives anyone license to do anything they want - anything they want - with the work. Google can take a public domain book and charge you $1,000,000 to read Google's copy of it, in only the ways Google wants you to.

But the original work is still public domain. So if you can find a copy somewhere else, you don't have to pay for Google's copy or follow their rules.


"These packets belong to you, but the packets get to you through hardware that belongs to Comcast. You are free to access these packets and do what you want with them, but Comcast has every right to limit how you use their hardware [and subsequently charge you extra for using some hardware paths, such as the ones going to aol.com or anticomcastpolitician.org]."

I don't like this argument, not one bit.


Not really the same thing. This isn't a net neutrality situation. While anyone can copy public domain material, that doesn't mean that any given entity is obligated to bear the expense of keeping it around to be copied.

Publishers presumably have had copies of all public domain books since they've been printed. Does that mean the publisher should be compelled to print a copy and give it away to anyone who asks? Even if they send an automated request for one 1000 times a second?


Yeah, I realize that the effort was high on Google's part, but if they're claiming that their right to lift the text from a book (that takes effort to create too, mind you) is drawn from 'fair use', then can't I make the exact same argument for lifting the same text from their servers as well?

Google's the one making the claim that publishers should do the work and not benefit from doing that work, so why can't I benefit from Google's efforts as well?


Google isn't making a copyright claim in preventing you from accessing the books via an automated way. They're limiting access to their servers.

If I have a book in my house and you want to cite text from it, you can't cite Fair Use to break into my house and look at it.


That's a good point.

If I did, though, you'd charge me with breaking in, not with stealing.


Apples and oranges: you're conflating copyright/fair use with terms of service.

Google's not claiming you don't have a right to reuse the text. They're placing restrictions on how you use their service to access that information. It's no more a copyright claim than your local library telling you that you have to come during their operating hours.


I never said it was a copyright claim, I said the same arguments can be used to justify packet preference.

Maybe Comcast only works from 9-5 anyway. It's their service. It'd be like a highway charging you different amounts depending on what time of day you traveled.


Train fares vary depending on the time of day. Some cities (London) set a "congestion charge" to vehicles driving in the city centre during the day. Utilities charge industrial (and some residential) customers different amounts based on the time of day.

I'm not quite sure what the parallel's are to Google Books though... (I think we've gone too far down the metaphor rabbit hole)


I just want to examine why it's okay for Google to say, "what we offer is yours, but since it's our servers we can dictate how we offer it to you", but when Comcast makes the exact same argument about our packets and delivering them to us, we call it a violation of net neutrality.


That two situations are superficially similar doesn't mean they don't have different real-world implications, and shouldn't be regulated in a different manner. Driving a go-kart is broadly similar to driving a semi-truck, but you only need a license for one.

Google's (and other Internet services providers) terms of service restricting your usage aren't anti-competitive in nature. The restrictions they're placing on your usage of the content don't prevent you from getting that same content from another provider (especially when we're talking about public domain or fair use text.)

Carriers are regulated much more heavily than other businesses, because the nature of their business creates a disproportionate number of opportunities for anti-competitive practices and other shenanigans. Also, many of them have a monopoly or duopoly position in their marketplace, and as such are scrutinized more closely for anti-competitive practices.

Example: As a monopoly cable provider I can be the dominant internet provider in your city. So to extract more money from users, I create a new subsidiary owned by the same (unregulated) parent company as the cable division that charges for online video. The parent company then tells the cable company to throttle the bandwidth for all competitors so that everyone is forced to move to that new company's video service, regardless of whether it's actually a better product. This is anti-competitive and harmful to the public - rather than offering a better service, I'm using my ownership of one business to unfairly hamper free competition in another market.


I'll answer this with the plot for the movie 3:10 to Yuma.

Rain falls down from the sky. It goes through a river. The river passes through Glen Hollander's land before it ends up in your backyard. Glen realizes this, and puts up a dam to prevent the water from reaching you, unless you pay a monthly fee.

You may not like it, but the internet is the rain, and it's flowing through Comcast's land before it gets to your back yard. You can always try to find a different landowner to sell you water if you don't like it, but ain't no "argument" that's gonna change where the rain falls. (Unless you start your own ILEC and dig your own fiber)


Careful with that though. You're creeping pretty close to some of the more absurd thought exercises of a pure libertarian utopia, the types of thought exercises that show pure libertarianism to be flawed as a universal sociopolitical scheme.

In the actual U.S. it is entirely probable that Glen would be made to get rid of the dam instead of cutting off water supply to the rest of the county, for the same underlying common-sense principles that have caused things like easements to end up in property law.


I must have missed the meeting where libertarians decided that a free society would be a utopia.


Yes, it's likely that an actual water supply could be a target for an easement, mainly because it's the only method of either transportation or sustaining someone's livelihood/life in a desert climate.

Even if the internet 'needed' to be used, the only easement you could claim would be on the equipment of the telco in order to access something over the telco's property [that you could not otherwise access]. There are multiple methods to gain internet access, and the internet is not a requirement of a property or method of access (unless telephones and postal mail become abolished), and does not affect your property.

I don't see what any of this has to do with political philosophy. The law is the law; doesn't much matter what you label it.


What if I helped build Glen's dam, because Glen convinced me that without the dam, the river would dry up before it got to me, and I'd be out of water?

What if Glen tricked everyone into not building dams of their own, because Glen promised to let other people use his water too, but then didn't actually honor his promise?


The digits of pi are public domain. However, my Internet Pi Server only lets you copy 10 digits per day. These 10 digits are served up as a PNG file that carries a watermark across them. You can't use them for commercial purposes. You also can't query my Internet Pi Server in an automated fashion.

None of this means that I'm holding the digits of pi hostage. My digits are only a copy. You are free to calculate your own digits of pi and serve them up under whatever terms and conditions you choose. That's the nature of public domain. If you don't like the way Google serves up its digital copy of a public domain book, you are free to do what Google did: seek out the book and make your own digital copy. You can then let others use your copy however you want.


What's so dark and evil about "we request that you use these files for personal, non-commercial purposes", "Please do not remove it" and "Whatever your use, remember that you are responsible for ensuring that what you are doing is legal."

It doesn't look like they are claiming the slightest right over any of it. Can't stand Google of late, but is there a single word of evidence for "we’ve reserved unique rights for ourselves?"


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.


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.


"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."

I don't see how this would make out of print books available. It would only allow them to come up in a search result.


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.


I believe GP is talking not about this decision but about what would have happened if 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.


That's why this decision is about a million times better than the settlement that was shot down years(!) ago. The settlement would have given Google a monopoly on the digitization of orphan books. A ruling sets a precedent that anyone can cite.


Without the court case hanging over this, I'd expect Google to offer authors something an opt-in "Google Books Upgrade" including things like:

- we'll use our scans to make a decent ebook for you (ideally better than your publisher would)

- we'll prominently feature a buy button next to search results / snippets related to your book

- we'll give you insight into queries that matched your book and what people did from there (looked at snippet, bought, ...)

- we'll give you more control over how snippets are displayed (e.g. how much at a time)

- and so on


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.


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


.....So?


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


Nope.


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.


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..


oh yeah and it wasn't the only time either: http://www.techdirt.com/articles/20121213/08013521375/belgia...


>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.


> If it's true that he ruled this way because higher court wanted him to acknowledge fair use, judge was not objective.

"wanted" is the wrong word here. Chin previously issued a ruling without properly considering fair use. The higher court (the US Court of Appeals for the Second Circuit) took the case on appeal, found that the failure to consider fair use was a legal error, reversed Chin's earlier decision because of that flaw, and sent the case back to Chin with a legally binding order that fair use be addressed.

That's what we have appellate courts for; its not a failure of objectivity for a lower court judge to follow binding directives from higher courts.


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


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?


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.


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


of course i disagree. There are plenty of things that would benefit the public but are illegal. Maybe an infinite number of things.


Seems to be missing the point. Courts pass judgment, typically, on areas of law that are not covered directly by existing legislation. If there was a Federal law saying specifically "You shall not scan and store books without the permission of the author.", it seems unlikely Google would have won. The upthread point wasn't that "benefits the public" was the only criteria for courts to use, just that it was the guiding principle to use in cases of ambiguity.


Not to mention the fact that most tend to forget: copyright law in the US was not designed to create "intellectual property" out of thin air, but very explicitly "To promote the Progress of Science and useful Arts". That's the original basis of Fair Use in the US (coming to us from British law) until it was later codified explicitly in the 1970s.

The four factors of fair use (each of which the judge discusses for this case) help balance the rights of the "Authors and Inventors" against the public's, but it's important to always remember that the primary purpose of copyright is advancing the public good.


i don't think there's any ambiguity. that's just my opinion.


Opinions are worthless without a justification.


i don't think any justification is going to change your mind. My opinions are shared by many other people. I know that many people view this issue as black and white, that a corporation should have rights to scan books and use that data to freely help the public and share those books freely to millions of people so they can help authors out by buying tons more of their books.

i think it's more complex than that. authors aren't patent trolls. many spend years upon years creating their work and the fact that they own the work they create puts them at ease and allows them to focus solely on their work. To know that they have control of their work is really necessary support for creating the best environment for authors.

i'm not talking about publishing companies either. An individual author should be able to opt out of being scanned by corporations, whether it benefits him or not, whether it increases his sales or not. That really is his choice. The individual author has a choice to DECREASE sales of his work if he chooses. After all, that is his product that he personally created.


"It benefits the public" is the only good reason.


Courts are always mindful of public policy while making rulings. So, benefiting public has been a valid reason for a long time. And I think it's a good reason.

Now does this really benefit people or not is another question. I think it does. Do you think it does not?


i don't think it benefits authors. I think searching for a book and reading a few pages and being done with it. That isn't ideal for authors at all. Some people just need to read a few things in the book.


Oh, man, I hope you don't find out about this terrible place called a library where people do that kind of stuff all the time.


Or the bookstore.


but libraries pay for their books. And a library might buy many copies of a popular book.


And they lend them out. Which is considered fair use.

Just like full-text search, now.

As was said by a sibling comment to yours, people do this all the time in bookstores too.

Corollary: Google shows a snippet of text from a website under their link. If what I wanted to find out is contained in that snippet, I won't necessarily click the link. Same thing, but instead of a pointer to a website (which, in this example, just lost a pageview), it's a pointer to an book that you can purchase.

More funnels to conversion mean more books purchased.


you can loan a book out to one person at a time. i think it's a little different.


not every author wants to increase sales. I would rather opt out even if that led to a decrease in sales. I can't make someone else increase sales by making them use my new sales platform for free.


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


Microsoft did do it, they found no profit in it and quit. Google is still not making the full text of books available, although I'd guess long term that would be the smart move for authors. You'd go straight from search to purchasing an ebook in a click.


Google ruling is not the first ruling, http://en.wikipedia.org/wiki/Authors_Guild_v._HathiTrust


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.


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


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.


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.


> 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!


And this is why we can't have nice things. This conflation of the higher principles of fair use with people simply wanting to get popular movies and video games for free.


It is actually a serious problem. The trouble is that some subset of the usage of P2P apps -- even for copyrighted works -- probably is fair use. Imagine some history teacher downloading Lincoln to make excerpts for classroom use in order to avoid having to personally use DeCSS on the DVD.

The problem is, how is anyone supposed to distinguish those people from naked infringers over the internet? There doesn't seem to be any obvious cost effective way to do it. So you have a situation where either fair use in the new medium is destroyed because those making legitimate fair use are lumped in with infringers for whatever penalties, or copyright enforcement is hopeless because you have to litigate a fair use defense for each of a million different users.


There is an ongoing litigation about this: http://www.dmlp.org/threats/tuteur-v-crosley-corcoran. The novel issue is whether sending a takedown notice requires a good faith belief that the infringment isn't fair use. If it does, then robo takedown notices become an abuse of the takedown process.


> The trouble is that some subset of the usage of P2P apps -- even for copyrighted works -- probably is fair use. Imagine some history teacher downloading Lincoln to make excerpts for classroom use in order to avoid having to personally use DeCSS on the DVD.

It seems to me the real trouble is that, with torrents, that history teacher will also be giving unauthorized copies to others, who are most likely not also history teachers.


> It seems to me the real trouble is that, with torrents, that history teacher will also be giving unauthorized copies to others, who are most likely not also history teachers.

I don't see how that gets you around the problem. You would still have to litigate the fair use defenses of downloaders before you could charge anyone, and if you find a downloader without a legitimate fair use defense, how are you supposed to prove after the fact who uploaded to that specific downloader?

I also don't understand the common perception that it should be the uploader who is liable for infringement. The downloader is the one who best knows the character of the use and therefore whether it would be permitted under the law, so it makes sense for the downloader to have the liability. And liability for the downloader is the one that doesn't require twisting the rights granted under the copyright act into a knot to find liability -- downloading should be reproduction because the downloader is creating a new copy on the local hard drive. Uploading is.. what exactly? The downloader is making the reproduction/copy. No copy is ever "distributed," since the uploader's copy and the new downloader's copy never move from their respective locations. No one is displaying or performing the work in public or creating a derivative work. What does that leave that doesn't require fudging to make it fit?


It seems to me the real trouble is that, with torrents, that history teacher will also be giving unauthorized copies to others, who are most likely not also history teachers.

It seems to me that, in the future, a sane legal system should ignore this technical aspect of torrents. Merely participating in an existing swarm should not be considered distribution.


So none of the uploaders in a swarm, no matter how many times they have shared the file, will be considered to have shared the file? Bittorrent will just be impenetrable to the law? I agree that copyright law needs reform, but I don't see how granting blanket immunity to Bittorrent users makes sense.


I did say existing swarm. I don't see how prosecuting downloaders as though they were uploaders makes sense either, even if they end up seeding due to the way the technology works.


"or make whole copies of books available"


You won't miss it if they trim a few minutes of dialog from the Phantom Menace. Boom, MPAA legal team out of business!


That is still effectively a whole copy. The law is not a poorly configured spam filter that you can get around by changing a couple of words here and there.


I think I know exactly which minutes of dialogue I'd like to trim from TPM


Yeah, but think about the effect on the work's value.


Fair Use is a four-part test. Chin has concluded that the book scanning project by Google meets all four parts of the fair-use test. You are taking a single-test discussed in the article ("Effect upon work's value") and assuming it's the only criteria. You can learn about the four-factors (which is judicial precedent) here: http://fairuse.stanford.edu/overview/fair-use/four-factors/

The four tests are:

* "Purpose and character" - Your use of the work must be substantially different (transformative). Generally, it is considered that you must be adding some new expression to the work. From the Standford link above: "At issue is whether the material has been used to help create something new or merely copied verbatim into another work". Clearly any attempt at sharing files in their entirety (or near-entirety) for the purpose of distributing the original film would fall down on this test.

* "Nature of the Copyrighted Work" - This is basically an acknowledgement that you can't copyright facts. There's significantly more leeway to copy from something like the phone book than there is from fiction. Most of the time file-sharing copyrighted torrents without permission and Google Books are probably on similar grounds here.

* "Amount and Substantiality of the Portion Taken" - The less you take, the better off you are. Google Books is in an interesting position here in that they _take_ the entire work, but they only _make available_ very small sections of the original work. In the case of the torrents, someone is making available all (or most) of the original work. It's definitely going to fall down here.

* "Effect upon work's value" - Basically, does the use in question have a significant negative effect on the market where the original work is in use. In the Google Book's case Chin noted that it didn't seem to negatively impact the market that the books were being sold in. The MPAA and RIAA have argued in court successfully so far that distributing torrents leads to direct financial harm. I find some of their arguments suspect (or at least lacking evidence), but courts have generally been receptive to this argument. Courts will determine that torrents fall down on this test as well.

Finally, it should be noted that Fair Use is an "affirmative defense". That means you can't get a judge to dismiss a lawsuit by saying "Fair Use". You'll need to go to trial. And the burden will be on you to show that the use was "Fair Use". This will cost a small fortune. So, assuming arguendo, that this ruling did create a precedent that torrenting was fair use, it would still be strongly discouraged as you'd have to go to trial every time to show that it wasn't.


Thanks for this intelligent response to my glib comment. I learned something & I appreciate it.

I disagree with the judge that Google should be allowed to do this, when they have a revenue model built around pageviews & advertising that is built on other people's content. It just seems to me that the argument is "We don't make money from people viewing [THE BOOK], we make money from people viewing the ads around the [THE BOOK]!"

So, replace books with [NBC's THIRTY ROCK]. Let me put my own ads in. Is that cool with e'rybody?

It doesn't seem right to me.


I don't know if it's enough to simply ask the question: "Is Google making money off of this." Commercial works can be Fair Use. Really, the commercial vs. non-commercial aspects fall into the "Purpose and Character" test. It's true that non-commercial uses are more likely to be held to be transformative (art projects, educational work, etc). It's not true that just because a work is commercial it isn't Fair Use.

A good example might be the way the Daily Show uses news clips. Technically, these clips are covered by copyright. The Daily Show could use these clips without permission through the doctrine of Fair Use. It's pretty clear that the Daily Show is a commercial product, but it uses the clips in a clearly transformative manner (that is, to parody, critique, etc).

Additionally, I think you may be overestimating the amount of a book Google Book Search shows when it doesn't have permission of the author of the book to show specific amounts. Here's an example search in a book that they don't have permission to display a complete preview: http://books.google.com/books?id=CIl9fxeIQIYC&q=National+Com...

Note that they merely show the search results with brief snippets around the matching results. So, instead of "we make money from people viewing the ads around the [THE BOOK]!" it would be more accurate to say "we make money from people viewing the ads around snippets of [THE BOOK]!".

It really goes back to those four factors. If you play NBC's Thirty Rock with your own ads mixed in or around the content, you'll fail most of those four factors.

If instead you play a short snippet of Thirty Rock then proceed to provide a new expression based upon that snippet (a critique, or a parody, or an interpretive dance) you would be quite likely to fall within the bounds of Fair Use. Even if you put ads around it.

Though, again, I'll note that Fair Use is an affirmative defense, which means you don't really get to bring up the defense until you go to trial. Generally, it's best not to rely on Fair Use unless you have deep enough pockets to go to trial over the issue.


You can (and some people do) say the same thing about a web search engine. It doesn't exist and has no purpose without other people's content. However, it is not the content that the search engine is serving, it is serving the ability to search that content, which is something completely different. That's what's meant by transformative, and there are many many things that could not exist if you could not take other people's ideas, transform them substantially, and release the results.

Copyright and fair use is a balancing act, and I agree with Judge Chin that the benefits to having all of the printed word fully searchable (someday, at least) is a middling loss for the content creators and a huge gain for the public.

To address your specific analogy: you aren't being deprived of being able to release your work, and they aren't releasing your work with ads inserted, so I don't think it really applies. Google Books doesn't have ads today, but I wouldn't have any problem with them on the search results page (just like I have no problem with (text) ads on web search results pages) since they are in fact providing content very distinct from your copyrighted work.


Google did not "make whole copies of books available."

Not a precedent.


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.


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>


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


Sounds like a conspiracy to commit copyright infringement to me!


They can't

See p. 9:

"one of the snippets on each page is "black-listed," meaning it will not be shown; and at least one out of ten entire pages in each book is black-listed... An "attacker" who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages. (Pl. Resp. ¶ 41). In addition, works with text organized in short "chunks," such as dictionaries, cookbooks, and books ofhaiku, are excluded from snippet view. "


Spot checking the first Hunger Games book on Google, it only displays the first 50 pages or so.


I would be interested in a "Chapterman's Book Club", where you can grab a torrent of the week's ten recommended chapters from various books and discuss them. There would actually be some novelty in it being legal.


My books are on many torrents. Very few people who can buy them torrent them. I've lost a few rupees. There are only a few hundred pop-book authors who could plausibly lose measurable income from more widespread torrenting.


I think its worth nothing, to "comply" with this ruling, it would have to be limited to music, and you would have to find songs that are not being otherwise offered as a "buy one", but rather come within the entire album.

In other words, if the judge said that its okay to scan and make available _parts_ of the book and this serves as "new income" for authors, then similarly you could weed off one song from entire album and make it available and try to fall under the judge reasoning, shall MAFIAA comes after you.

But if I were you I wouldn't try, unless you are Google/Apple/or Ebay too big to fail/jail.

IANAL tho.

Alternatively, envision torrent network that every person shares only part of a song. Noone, technically shares online entire song, but only lets say 25 seconds of it. This would completely fall under judge's reasoning :)


> Alternatively, envision torrent network that every person shares only part of a song. Noone, technically shares online entire song, but only lets say 25 seconds of it. This would completely fall under judge's reasoning

Probably not. The judges ruling is an application of fair use law to the particular case; one of the considerations expressly applied is the criteria (specified in the fair use statute) of effect on the commercial market for the work. Sharing parts of works as part of a network of people collaborating to, in combination, share the whole work can quite easily be argued to have a very different effect on the market for the work than what was at issue in this case, making your hypothetical readily distinguishable under the criteria applied.


The "make whole copies of books available" thing is crucial, because that's what makes it not a substitute for the original work. I think most companies would not be particularly upset if you torrented a demo or trailer of their movie/game/whatever. But instead, most people make the entire work available, so that it acts as a replacement for purchasing the work.


Which kinda they do ... I have discovered a lot of stuff that way.

And any game that I have obtained and liked that way is already in my steam and gog libraries.


Shouldn't that be "new income FOR authors"?


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.


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.


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...


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/


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


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


(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.


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.


"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.


A lot of the complexity comes from this being the first case to deal with this kind of issue. That means a lot needed to be sorted out along the way (even such simple things as which legal issue should be considered first).

Now that this ruling has been made (and assuming it holds up on appeal), the next case along the same lines will be much simpler. Some of those cases might not happen at all (since the expected result will now be clear).


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...


>>Also, what Google provides is no different than what you get from going into a store and flipping through the book's pages

Besides a few hours of time that you'd lose in going to the bookstore, searching for the book you may never find, and flipping through the book?


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.


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.


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


There are definitely areas where paper books excel (cookbooks.) However I argue that eBooks are unmatched for fiction and non-fiction pleasure reading. I know I've certainly read more books and bought more books since I purchased an eReader.

I feel that a lot of resistance to eBooks are luddite-esque ("I like the smell of books," "I like the feel of books," "I like my full bookcase.") It will probably take a half-generation of kids using eBooks to figure out what the new normal will look like (cf: the disruption from cassette to MP3.)


I agree with you that paper books are more a pleasure to read than e-books, but the case wasn't about that. It was for preserving books and giving customers more choices. I think the decision is a good one.


[deleted]


Also, when you go into a bookstore you don't see all the unread messages in your inbox.

Clearly the GP was referring to a single facet of what Google provides.


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.


"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".


I think it's more like "piracy is legal if you do it on a large enough scale".

If some snot-nosed teenager scanned a book and posted it on the web, the court would squash him like an insect. But a multi-billion-dollar company with an army of lawyers at their disposal scans every book and puts them all online, suddenly that's "fair use".

It's like the old saying: if you owe the bank $100 you have a problem, but if you owe the bank $100 million, the bank has a problem.


But no full book is posted online in this case


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


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.


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))


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.


The more you know.

Thanks - that makes a lot more sense than some bot working around a spam filter. Seems like an obvious loophole as well.


why? the best thing about HN is that normally if someone doesn't have an informative/useful comment about a topic, they don't say anything.


Because it existed for 42 minutes prior to my comment, and in the few minutes since my comment (after hitting the #1 spot on the front page) there have been 9 new comments.

It's not a typical usage pattern for HN, even on non-controversial topics.


This fits in with my use pattern:

1. See an article I want to read on HN. Upvote it, open link and HN thread in new tabs, scan the rest of the page for other articles.

2. Eventually read the article.

3. Read the HN page related to the article. Cogitate. Develop insightful comment.

With other interruptions, all that could easily take 30-40 mins.




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