Chin Drops the Bomb: Fair Use For Google Books

If I had known earlier that Denny Chin was to deliver his decision on the fair use question in the Google Books case, I would made my way to Madison Avenue and lurk outside the office of the Authors Guild, the plaintiffs. There I might perhaps have heard a pitiful wailing and gnashing of teeth, sounds no doubt echoed in many a lawyer’s chamber around the city. For Denny Chin drop the bomb on their hopes, and found an affirmative fair use defense for Google’s scanning project. That the result was pronounced in the Federal District court of what has historically been the centre of the US publishing industry is also noteworthy. But this has been a never-ending saga of litigation so first let’s recap, check the reasoning, and lastly ponder the consequences.

Background

1. Google Books comprises three classes of texts from a legal point of view: public domain works which can be made available in their entirety; books which are made available to preview through partner agreements between Google and publishers; and books which were scanned by Google without permission, the searching of which produces small ‘snippets’ of the text as results. This court case concerns the final group of books.

2. The Authors Guild and Association of American Publishers launched their legal action in 2005. In 2008 a settlement was announced by Google, it would be subsequently be amended, but the substance was to (a) make a payment to affected authors (b) pay the plaintiffs lawyers and (c) fund the establishment of a Book Rights Registry. This settlement was eventually rejected n multiple grounds by Denny Chin in early 2010. At this time he was a Federal District Court Judge in New York. Chin was subsequently promoted to the Court of appeals for the 2nd circuit, but as able to hold onto several cases from his previous post – including the Google Books case.

3. While the various parties involved attempted to reach a modified agreement which would be acceptable to the courts, Chin set a schedule for litigation of the original copyright infringement action. As the Authors Guild were to put the case for all the authors whose works were copied, they had to get ‘certification’ of the class – basically a decision from the court that it is appropriate that the plaintiff represent all members of the class and has the means to do so. Certification was issued by Chin in May and then appealed by Google in July. Obviously Chin did not hear the appeal of his own decision. The Court of Appeal sent the case back to Chin at the District Court to make a determination on the fair use defense to the charge of copyright infringement, as a decision in Google’s favour would make the certification issue irrelevant.

The Scheme

i. Google got access to the books from participating libraries, who received a digital copy of each of their books in exchange. All texts are processed for optical character recognition (OCR) so that a full word index can be constructed to enable search.

ii. Much emphasis was placed on the restrictions on access to those books scanned without permission, of which only ‘snippets’ are displayed. Each snippet is one eighth of a page and only three snippets are ever returned in the results field. In addition to this limitation, one out of the eight snippets is never displayed, and no snippets are available from one in ten pages. The upshot of all this is that the full text of the book is never displayed to users, even over long periods of time in a fragmentary fashion.

The Verdict

A. Chin found in favour of Google in the fair use determination. He analyzed the facts against the four factors of the fair use test codified in the law, but did so in the shadow of what his interpretation of copyright’s ‘very purpose’: “Copyright law seeks to achieve that purpose by providing sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences.” (page 16)

B. He then stressed that a key issue was whether the alleged infringement is ‘transformative’:

that is, whether the new work merely”supersedes” or “supplants” the original creation, or whether it: instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” (page 18)

In the recent past this approach has been used to provide the fair use imprimatur for the basic technology of search, the cases Kelly v Arriba and Perfect 10 v Google.

C. He then applied the four factors in turn (pages 19-25).

1.  ‘the purpose and character of the use’; Chin found the use to be highly transformative, as (a) its cross-corpus index of words in books had quickly become crucial for research as well as (b) making possible whole new types of research such as text and data mining base on the quantitative analysis enabled, whilst (c) the service did not offer a competing way to actually read the books. Given all this it was of less import that Google is a commercial enterprise and undertook the project motivated by profit.
2. ‘the nature of the copyrighted work’; most of the books scanned were non-fiction works whereas ‘works of fiction are entitled to greater copyright protection’
3. ‘amount and substantiality of the portion used’; Google copies the entirety of the work, and whilst the making of full copies does not exclude the possibility of a fair use finding, this is the only point which Chin felt went against a fair use finding.
4. ‘Effect of Use Upon Potential Market or Value’; this is often the determinant part of the analysis. Here the plaintiffs claimed that the value of their works was being undermined, but Chin disagreed. He argued that given that Google was not selling the scans it produced as part of building the library, what they were effectively doing is helping to build potential sales by making it easier to discover forgotten, lost or neglected works.

The Fair Use analysis is followed by a summary of the social benefits of the service:

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. (page 26)

As far as Chin is concerned the same analysis applies to objections to the libraries use of their scanned copies. And that’s that, a knock-out for Google and the libraries in the Southern district of New York.

Consequences

Momentous as it is, for now this is just a District Court judgement; endorsement by a higher court will be necessary before its full impact is felt. In the short term the decision will surely be appealed. How willing will the 2nd circuit be to reverse one of its own judges, and one who has been sleeping with this litigation for so many years? Does that mean it will go to the Supreme Court?

More broadly, the fact that this went to court meant that this defense is now open/applicable to others as well. A huge concern with the Google books settlement was that it was a private agreement granting them exclusive shield from liability with regard to the corpus of books – the path is now open to others to do the same, like the Internet Archive perhaps. Furthermore the concept of transformative use comes out of this emboldened, and available potentially to others working with different forms of archives, such as moving images for example.

Of course the problems for those who would follow in their footsteps is that the rules are different for Google. Not only do they have the money to fight infinite legal battles, but they have the reach into our habits such as to make their tools ‘useful’ and ‘socially beneficial’. They benefit from a presumption of legitimacy because of our reliance upon their services. Should this decision survive the coming challenges, the real test for it will be whether it provides a shelter for the next technologists developing tools that upset an incumbent industry.

Lastly, I’m looking forward to hearing the response from those who have followed this story for years, such as Robert Darnton and Siva Vaidhyanathan.