A few months ago, a U.S. appeals court ruled unanimously that Google’s scanning and indexing of millions of books was not a wholesale attack on authors and the copyright system, as the Authors Guild has been arguing for years, but is clearly permitted under the “fair use” exemption in copyright law. Unsatisfied, the Guild is now trying to convince the Supreme Court to hear its case.
But the authors’ group is still wrong.
In 2004 Google sent its moving vans to the libraries and carted off some 20 million books. It copied them all, including books in copyright and books not covered by copyright. It asked no authors or publishers for permission, and it offered no compensation for their use.
Clearly, the Guild wants to make it sound as though Google somehow got away with a daylight robbery of 20 million books, stealing them from copyright holders with no thought for the impoverished authors who wrote them. But that’s not how two separate U.S. courts have seen it, and it’s not even close to being an accurate reflection of the case.
Note: This was originally published at Fortune, where I was a senior writer from 2015 to 2017
Google’s book-scanning project is one of the longest-running copyright cases in U.S. history. It started with a lawsuit by the Guild in 2005, after the search giant had been scanning books for some time with the help of dozens of leading U.S. universities including Harvard and Yale (organized later as the Hathi Trust).
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The Guild’s original argument was that scanning and indexing books without the permission of authors and/or publishers was a clear breach of their copyright, and that Google should either ask for permission or be forced to pay.
Google and its supporters, however, argued that scanning and indexing books and then allowing users to search for them online (and potentially buy them) was a positive thing for society and a “transformative” use—in other words, not just simple copying. The company also argued that indexing the books was not infringement in any real sense because no one would ever see anything more than a short snippet of text online.
Copyright infringement can be allowed under U.S. law if a court decides that it constitutes “fair use” of the original material. In order to come to this conclusion, the court considers four critical factors, including: 1) The purpose of the infringing use; 2) The nature of the original work; 3) The amount of the original work used; and 4) The impact that the infringement might have on the market for the original.
The authors’ group lost its initial case in 2013, when Judge Denny Chin ruled that Google’s book-scanning project met “all the legal requirements for fair use.” Not only did the scanning and indexing of books provide what the judge called “significant public benefits” both to authors and book lovers, but Chin said that “all society benefits.”
In a nutshell, both lower courts agreed that the public benefits of being able to search and potentially buy millions of searchable books was a fundamentally transformative use of the original copyrighted works, and that this trumped the fact that Google is a for-profit corporation and was scanning and indexing entire books.
Since the Supreme Court hears so few cases, there has to be a critical legal issue at the heart of a case in order for it to be accepted, so the Authors Guild has changed its tack. Now, it is arguing that lower courts have in fact distorted copyright law beyond its original meaning, by over-emphasizing “transformative use.” The brief states:
The Second Circuit’s refusal to give real weight to any factor other than the perceived transformative purpose also contradicts the approach mandated in other circuits. More fundamentally, it threatens to undermine protection of copyrighted works in the digital age to an extraordinary extent. Such a radical rewrite of copyright law should not be allowed to stand without this Court’s consideration.
The Guild also argues that the original drafters of copyright law couldn’t possibly have foreseen the impact that the Internet would have, or the power it would give to companies like Google. In the “friends of the court” brief, it says the law was never intended to “permit a wealthy for-profit entity to digitize millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.”
The authors group may be right that Congress could not have foreseen the Internet and what it would do to content and media in the 21st century, but that actually hurts its argument more than it helps. The intended purpose of copyright was not to create an eternal revenue stream for authors and creators, but to “promote the progress of science and the useful arts,” so that they could be enjoyed by as many people as possible, for the betterment of society.
With that as a guide, the fact that someone has scanned tens of millions of books so that people could find and potentially buy them isn’t the worst thing that could happen to books as a social good, it’s the best thing. It’s exactly what the “fair use” exemption was intended to promote. And the Guild’s refusal to see that makes it not only legally wrong, but also makes it look far more venal than the company it is trying to criticize.