James Grimmelmann: Two Fair Use Rulings, One Clear Message

James Grimmelmann -- December 6th, 2013

images

By now, you’ve seen the news: the Google Books case is over. Google won. Scanning books to make a search engine is fair use. Google Books will continue, and other book-scanning projects may start.

This denouement might have seemed unlikely in the early days of the lawsuit, when Google’s book scanning was new and scary. But Judge Denny Chin’s November ruling demonstrates just how much the world has changed. Since Google began its program nine years ago, book scanning has become domesticated, and its benefits are easy to see. What was once viewed almost as science fiction has become part of our daily reality—everyone, it seems, has used Google Books, even Judge Chin’s law clerks.

The world has also changed since 2008, when the controversial Google settlement was first announced. Critics argued that the proposed settlement put Google in a position to dominate the book industry with a unique product that no one else could compete with. But Google Books the “search engine” has not proven to be the threat that Google Books the “universal library/bookstore/panopticon” was once portrayed to be. And the company’s program to sell e-books through Google Play has stumbled badly, even as the e-book trade has flourished.

The ruling also vindicates the scholars who first spoke up against the settlement. (I was not initially one of them; they had clearer foresight than I did.) Instead of a settlement that only Google could rely on, the scholars wanted to see a fair use decision that would benefit other readers and users. Judge Chin has given other potential innovators the same green light Google received, and provided a legal foundation for new kinds of projects, in book scanning and beyond.

“Invaluable”

With Judge Denny Chin’s decision, two federal judges have now held in no uncertain terms that book scanning is fair use. In October, 2012, in the Authors Guild vs. HathiTrust case, the Authors Guild’s parallel case against Google’s library partners, Judge Harold Baer wrote that he could not “imagine a definition of fair use that would not encompass” the full-text search and preservation enabled by Google’s scanning.

Judge Chin agreed, writing that Google Books “has become an invaluable research tool” that “advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals.”

But where Judge Baer’s opinion was quirky, Judge Chin’s is sober and restrained. It is worth noting, too, that Chin is hardly hostile to copyright owners.

In a recent dissent in a case about streaming live TV signals on the Internet, Chin showed that he takes copyright owners’ concerns about new technologies seriously. He wrote that the majority’s decision to permit a company called Aereo to rebroadcast TV signals online “eviscerates the Copyright Act,” and said that the case was of “exceptional importance” because of its potentially “significant impact on the entertainment industry.”

For much of the case, Judge Chin had also appeared to be skeptical of Google’s scanning. In rejecting the Google Books Settlement two years ago, he wrote that Google had “engaged in wholesale, blatant copying” of the authors works. And though the Second Circuit reversed him, he also believed that the authors had the right to litigate Google’s mass digitization on a class basis, calling Google’s scanning “sweeping and undiscriminating.”

When he looked more closely at Google Books, however, Judge Chin saw overwhelming benefits to the program. He devoted four pages of his opinion to the benefits Google Books offers—to readers, to researchers, to digital humanities scholars, to underserved populations such as the blind, to the preservation of our literary heritage—and, yes, even to authors and publishers.

“Indeed, all society benefits,” he concluded.

At the same time, he found no evidence of economic harm to copyright owners. Google “does not sell its scans, and the scans do not replace the books,” he wrote. Rather, because Google Books helps readers identify the books they seek, “there can be no doubt but that Google Books improves books sales.”

To many copyright owners, this search for concrete harms feels confused, even offensive. Many copyright owners have long seen the clarity of copyright’s core command—copying requires permission—as eliminating the need to prove harm in each specific case. But harm in the market has always been one of the four fair use factors, and when a defendant can put on a strong enough showing across all four factors, the lack of identifiable harms becomes decisive.

The sky has not fallen in the nine years since Google started scanning, and it is not about to start falling now. Nine years is a long time. If the Authors Guild was unable to show specific any specific harm by now, it seems unlikely it ever will.

Winners and Loser

There are many winners in Chin’s decision. His fair use finding offers a major boost to search engineers, who can now create comprehensive indexes without fear of crushing copyright liability. It encourages Big Data researchers to stoke their algorithms with the coal of copyrighted materials. It invites libraries and archives to digitize their collections, for preservation and for access by the disabled. And, of course, authors benefit by having their books available for discovery on the Internet.

The greatest loser, it almost goes without saying, is the Authors Guild, which seems determined to press its appeals until the bitter end.

After nine years and multiple adverse rulings, it is clear that the lawsuits are a matter of principle for the Authors Guild. But what kind of principle is this?

It is not a matter of money. More than 90% of authors in one survey done by Google said they believe that Google Books does not hurt them financially.

Nor is it a matter of Google indexing the books of authors who object. Google excludes the books of anyone who opts out.

Nor is it even the idea that authors should be asked, individually, for permission. The rejected class action settlement the Authors Guild itself proposed presumed permission and required objectors to opt themselves out.

Rather, the operative principle is the desire to give authors abstract, exclusive, and absolute control over their books. But here, that principle is all but indistinguishable from Grinchiness—the fear that someone, somewhere, might access a book without permission.

It is true that respect for authors is at the core of the copyright system. But it has also always been the case that copyright law’s respect for authors’ wishes gives way when other serious social interests in the “Progress of Science and Useful Arts” are at stake.

Victory for the Authors Guild would have slapped books out of the hands of the blind, for example. While some might argue that this is what licenses are for, the reality is that authors and publishers have had decades to make their books available to the print disabled, and only a small fraction of them are.

The Authors Guild’s uncompromising stance is exactly what some authors want. Others might reasonably question what good the Authors Guild has done them with a decade of singularly unsuccessful litigation.

One thought on “James Grimmelmann: Two Fair Use Rulings, One Clear Message

  1. JOHN T. SHEA

    Interesting article, Professor, though I’m not sure what most authors could have done to make their books accessible to the print-disabled over the decades, unless they self-published in recent years.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>