Title: Google Books: It Ain’t Over ‘Til the Librarian Sings
Abstract: On October 16, 2015, the US Court of Appeals for the Second Circuit handed down its opinion dismissing the Authors Guild’s copyright case against Google Inc.2 What does it all mean for librarians? History of the Google Books Case Let’s make a quick trip through the history of this long‐running litigation. It all began in 2004 when Google announced the initiation of its Google Print project and its Library Project (now generally called Google Books). A few months later in 2005, the Authors Guild, several individual authors, and various publishers filed a lawsuit in New York City against Google, seeking to enjoin the project from going forward. As litigation sometimes does, the proceedings began to drag out as the parties filed various motions with the court and engaged in preliminary investigations (known as “discovery”). The parties also began negotiations over a possible settlement in 2006. After extended discussions, the parties filed a proposed settlement agreement on October 28, 2008. Notice of the proposed settlement was widely circulated and produced hundreds of objections. The parties then modified the proposal and, on November 13, 2009, filed a proposed amended settlement agreement with the trial court. After notice of the amended settlement was circulated in early 2010, another flood of objections was filed, including one from the US Department of Justice which alleged that, if the proposed settlement was adopted, substantial anticompetitive effects would result. On March 1 Mr. Hannay is is a regular speaker at the Charleston Conference and a contributor to Against the Grain. 2 The Authors Guild et al. v. Google, Inc., 804 F.3d 202 (2d Cir. 2015). 3 On October 4, 2012, the Association of American Publishers (AAP) and Google announced that they had settled the publishers’ part of the Google Books litigation. See http://www.publishers.org/press85/. The settlement provides access to publishers’ in‐copyright books and journals digitized by Google for its Google Library Project. Other terms—including monetary payments, if any—were not disclosed. 22, 2011, US District Judge Chin rejected the amended settlement as not “fair, adequate, and reasonable.” The parties went back to the drawing board but were unable to reach a settlement that was likely to pass muster with the court. So the case resumed its litigation posture, and on May 31, 2012, Judge Chin certified a class of plaintiff‐ authors and allowed them to proceed to trial.3 But a little over a year later, the US Court of Appeals for the Second Circuit vacated the class certification and ordered Judge Chin to consider whether or not Google had a legitimate “fair use” defense. He did so, and on November 14, 2013, Judge Chin granted summary judgment to Google on its fair use defense. The Authors Guild filed an appeal which, almost two years later in October 2015, resulted in affirmance of the District Court’s judgment. Where Are We Now That the Case Is Over? Is it actually over? Plaintiffs could possibly file a petition for a writ of certiorari with the US Supreme Court, but the likelihood of the Court accepting the case for review—and actually reversing it—seems low. But the truth of the matter is that, assuming the case is over, the legal result of the case is both extremely sweeping and at the same time Copyright of this contribution remains in the name of the author(s). http://dx.doi.org/10.5703/1288284316323 589 Charleston Conference Proceedings 2015 extremely narrow. While millions of individual books have been copied and made part of the Google Books project, all that the Second Circuit has approved are the narrow word search and “snippet” features of the project. The court’s opinion is limited to this specific conduct, and there is no court authorization for Google to do anything more than that. On a book‐by‐book basis, therefore, very little of the works are actually made available to users of the system. A Reminder of What Google Is doing Google has made digital copies of millions of books that were submitted to it for that purpose by major libraries. Over 20 million have been scanned since 2004 (at an average cost of $10 per book). In turn, Google has established a publicly available search function for the digital copies. Specifically, an internet user can use this function to search—without charge or advertising—to determine whether the book contains a specified word or term. The result of the search is that the user can see “snippets” of text containing the searched‐for terms. In addition, participating libraries (i.e., those that have made their books available to Google for scanning) are given a limited right to download and retain digital copies of the books that they submitted. Google’s Search Function Is Quite Limited The search function in Google Books is quite limited. Only the first usage of the searched‐for term on a given page is displayed, for example. Overall, for each book containing the search term, a maximum of three “snippets” containing the term are displayed. (A snippet is a horizontal segment comprising ordinarily an eighth of a page highlighting the term.) It appears that the Google Books system cannot be fooled into providing more quotations. In particular, a researcher cannot increase the number of snippets revealed on the system simply by repeating the entry of the same search term or by entering searches from different computers. Moreover, one snippet per page and one page out of ten containing the term are randomly “blacklisted” by Google and cannot be displayed. Furthermore, no snippet views of certain books such as dictionaries, cookbooks, and short poems are permitted. The Second Circuit’s Ruling In analyzing fair use, the Court of Appeals applied the four‐part statutory test contained in Section 107 of the Copyright Act of 1976. That Act provides that in determining whether a use is “fair,” the factors to be considered must include— (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. Focusing heavily on the first factor (i.e., the purpose and character of the use), the Court of Appeals upheld Google’s making of a digital copy to provide a search function as fair use because it is “transformative.” It augments public knowledge by making available information about authors’ books. By contrast, Google does not provide the public with a substantial “substitute” for the substance of the matter protected by the authors’ copyrights in the original works. The same is true, at least under present conditions, of Google’s provision of the “snippet” function. The search tool permits a researcher to identify those books, out of millions, that do—as well as those that do not—use the terms selected by the researcher. While Google is a for‐profit entity, the court held that profit motivation does not in these circumstances justify denial of fair use. In any event, Google does not charge for the search and snippet functions. (Whether a court might view matters differently if Google were to attempt to