Author Archives: James Grimmelmann

James Grimmelmann: Two Fair Use Rulings, One Clear Message

James Grimmelmann -- December 6th, 2013


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.


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.

In re Books

James Grimmelmann -- December 10th, 2012

On October 26 and 27—yes, just before Hurricane Sandy—New York Law School hosted In re Books, a “conference on law and the future of books.” A loose spiritual sequel to our 2009 conference on the Google Books settlement, D is for Digitize, In re Books was designed to bring together authors, publishers, librarians, scholars, and readers to think deeply about the challenges facing books in a digital age, and how law can help face those challenges. I’m happy to report that, following some post-Sandy cleanup, full video of the conference is now available online. (We will have downloadable versions ready soon.)

In my opening remarks, I tried to set a tone of good will for the conference:

We here in this room are joined by a common love of books. We are authors, publishers, literary agents, librarians, archivists, scholars and especially all of us are readers. And we are gathered together in a law school, for of all the professions, it is the lawyers who are the most devoted to the written word. Our task is to consider the future of books and law in a digital age. We stand at the crossroads of legal code, computer code, and the codex.

The legal system for books we have today is essentially the same one developed three hundred years ago to make cultural and economic sense out of the rise of a transformative media technology: the printing press. Today, we are living through—we are creating—another, equally transformative media technology: the computer. We are, I submit, still in the in incunabulum age of the digital book; the basic technology is clearly established, but the social outlines of what digital books will become are not. Determining the most appropriate laws to go along with them—whether it be the next iteration of copyright, or the Worshipful Company of Kickstarters, or the Deposit Library of Babel, or the inalienable moral right to have your wiki revisions properly attributed—we will not today or tomorrow finish the task, but we can perhaps help to advance it. …

It is early in the morning of the next age of books. Let us welcome in the day and see what it will bring. Continue reading

The Google Appeal: Is There a Class?

James Grimmelmann -- November 23rd, 2012

The Google Books lawsuit—seven years old and counting—grinds on. In May, Judge Denny Chin certified it as a class action, with three individual authors representing all authors with books scanned by Google. This Summer, Google appealed Chin’s decision, and that appeal is now being considered. On November 9, Google filed its opening brief, and it was supported by a group of library associations and by well over a hundred academics led by Berkeley’s tireless Pamela Samuelson. Electronic Arts, Pinterest, and Yahoo! also indicated they would like to file a brief, but didn’t get their act together in time and have asked for an extension.

Looking down the road, the issue of class certification is a procedural sideshow. The question everyone cares about—is it legal to scan books en masse?—almost certainly won’t be settled this year, and quite possibly not in 2013 either. Meanwhile, as the Google lawsuit plods along, the book industry bounds into digital. Google Books has gone from front-of-store to the backlist, and the publishers have already remaindered their own suit against Google. And, the Guild was soundly trounced in the parallel HathiTrust suit against Google’s library partners. Unless that resounding holding in favor of fair use is reversed on appeal, it may not much matter what happens to the original class action against Google. Still, it’s worth unpacking the issues now before the Second Circuit in the Google Appeal. Continue reading

HathiTrust: A Landmark Copyright Ruling

James Grimmelmann -- October 13th, 2012

The Authors Guild’s lawsuit against Google over book scanning is grinding on into its eighth year. After a settlement, an amended settlement, a rejection of the settlement, and a protracted procedural fight over certifying the case as a class action, it has made almost no substantive progress in front of Judge Chin.  Meanwhile, the Authors Guild’s lawsuit against Google’s HathiTrust library partners has produced a definitive ruling from Judge Baer in little more than a year. What started as a sideshow has become the main event.

And what an event it is! The mainstream media were all over last week’s ho-hum settlement between Google and the AAP but have mostly kept quiet about yesterday’s ruling.  In contrast, the Twitterverse exploded with news of the HathiTrust opinion and hasn’t quieted down yet. The Twitterers have it right: this decision is a big deal.  There are so many winners from the decision, it’s hard to count them all: Continue reading

Imaginary Bruce Willis

James Grimmelmann -- October 10th, 2012

Last month, a British tabloid reported that Bruce Willis was planning to sue Apple. The actor, the newspaper explained, was furious that iTunes’s terms of service would keep him from leaving his music collection to his daughters when he died. The story was soon revealed to be somewhere between fantasy and fabrication. But even before a five-word tweet from Willis’ wife (“it’s not a true story”) definitively refuted the article’s claims, the news had gone viral, spreading far beyond the usual haunts of fatuous celebrity journalism. Something in the rage of Imaginary Bruce Willis had touched a nerve.

Part of what makes the story so remarkable is that it’s also so implausible. Bruce Willis is one of the most successful actors of his generation, with a Hollywood career spanning three decades and multiple mega-hits. He’s so successful that surely he could afford to leave his daughters enough money to buy all the digital music they they can listen to. No child of Bruce Willis will ever want for music.

But the story blew up like something out of a Bruce Willis movie because it tweaked an anxiety many people share about copyright: that we no longer really own the songs we listen to or the books we read. Traditionally, a crucial part of copyright law’s bargain between author and audience was that the author owns the copyright, the audience owns their copies. This second half of the deal—that we have the right to give away our media, to lend them to friends or sell them to strangers—was enforced by the doctrine known as first sale. You buy something and it’s yours. Only the author has the right to authorize more copies, but you can do with yours as you please. Continue reading