Google scores a win in digitization case

A partial win for Google

The latest decision in the seemingly-never-ending battle between the Authors Guild and Google over digitization of books for online use gave Google a partial victory in the courts yesterday.

The United States Court of Appeals for the Second Circuit, in Manhattan, vacated an earlier decision of the District Court that put the Authors Guild in the driver’s seat for the litigation and sent it back to the trial court for a decision that could give Google an outright win.1

Here’s the story.

The Authors Guild filed suit against Google back in 2005, arguing that the online giant’s efforts to scan books for online use was a violation of the copyrights of the authors. And the Guild brought the suit as what’s called a class action.2

The complaint alleged that Google was infringing the authors’ copyrights by scanning books and by making snippets available online if the books were still under copyright protection. It sought statutory damages — which can run as high as $150,000 per violation3, plus costs and attorneys’ fees.4 Google had estimated that, if it lost the suit, it could face billions of dollars in damage awards.5

In 2008, the two sides seemed to have reached a compromise that would settle the case with a payment of $125 million and the creation of a system where authors would share in future profits from the digitization project.6

But after years of wrangling over the settlement in the courts, the whole proposal was shot down by U.S. District Judge Denny Chin, the trial judge, in 2011, who said the settlement did not meet the legal standards required for settlement.7

At that point, Judge Chin went on to decide that the Authors Guild and several individual authors could proceed with the case as a class action.8 That meant that the Authors Guild was allowed to act on behalf of every author affected by Google’s digitization, whether the author wanted to sue Google or not.

Now whenever a case goes forward as a class action, there’s a lot of pressure on the defendant to settle. The aggregation of damages ranging from $30,000 to $150,000 per member of the class changes the whole dynamic, That’s why the fight in most cases like this one isn’t over the merits; it’s over whether or not the case gets certified as a class action. If it is, plaintiff has the upper hand. If it isn’t, things shift back to the defendant.

What the Second Circuit did yesterday was toss out the class certification — and that’s an important, but partial, win for Google. What may be even more important was the Circuit Court’s direction to the trial judge to consider, first, the question of whether what Google is doing falls within the fair use doctrine.

And if Google wins that, it’s case over.

Now why is this important to genealogists?

Two reasons.

First and foremost, none of us wants to lose the access we have now to the vast library of materials that are what we use everyday as part of Google Books. To the extent that digitization allows full-text searching of millions of resources held in libraries around the country, it’s a wonderful thing. Being able to find out what books contain references to specific people and specific places should help us target our research in a way that hasn’t been possible before.

But, second, too big a win for Google — if it eventually gets the green light to put whole pages of copyrighted works online — may sound the death knell for many small publishing companies including those that are important to our community.

So it’s something to watch — and still worry about.

Stand by as the case goes back to the trial court.


 
SOURCES

  1. The Authors Guild et al. v. Google, Inc., No. 12-3200-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 1 July 2013, online at court website (http://www.ca2.uscourts.gov/ : accessed 1 July 2013).
  2. See Complaint, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 4 Sep 2012).
  3. See 17 U.S.C. § 504(c).
  4. See 17 U.S.C. § 505.
  5. See Larry Neumeister, “Google Books Lawsuit: Authors Guild Demands $3 Billion,” Huffington Post, posted 8 May 2013 (http://www.huffingtonpost.com : accessed 1 July 2013).
  6. See
    $125 Million Settlement in Authors Guild v. Google,” The Authors Guild (http://www.authorsguild.org/ : accessed 1 July 2013).
  7. See opinion, 22 March 2011, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Copyright.gov (http://www.copyright.gov/ : accessed 1 July 2013).
  8. See opinion, 1 June 2012, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 1 July 2013).
Print Friendly
This entry was posted in Copyright, Court Cases. Bookmark the permalink.

20 Responses to Google scores a win in digitization case

  1. The Seattle Genealogical Society is part of the class-action suit, since Google scanned many of our Society Bulletins at the University of Wisconsin Library. They have made them available in snip-it view. Unfortunately, Google labeled them with the Wisconsin volume numbers (which are not the same as the cover volume numbers), which makes finding the full articles problematic for our research helpers.

  2. Dave says:

    I’m certainly not a lawyer, so I defer to Judy on points of law, but I do think I understand copyright law better than most people (lawyers or otherwise) who don’t specialize in it. Not saying I’m the world’s foremost authority, by any means!

    I think what this case will eventually boil down to is (1) what is a “snippet” in terms of the percentage of the book, and (2) is it only the same snippet being used each time, or is it theoretically possible that someone could over time get the entire book through repeated searches.

    My sole experience with Google Books is with out-of-copyright material, so I don’t know the answers to my questions. It does seem to me, though, that Google has gone beyond stretching the definition of “fair use.” A small section of a work can be quoted in a review, for example, and the copyright owner can quote as much as he wants for any reason, but my limited perception is that Google is displaying much more than a “reasonable amount” for their own commercial purposes (i.e., the ads that appear on the site).

    • Judy G. Russell says:

      There’s absolutely NO question that it’s for a commercial purpose, Dave, but I think you’re right on what the fight will eventually come down to: what’s a snippet and how is it displayed?

  3. Chris says:

    It is stated above that the Authors Guild’s complaint is that Google is infringing on their copyright by making snippits of their work available online.
    A number of times I’ve bought a book, ONLY, after viewing one of these snippits on Google Books. Without that preview, or peek, I may well have not invested the money in buying the book. I think the Authors Guild should take a new look at the potential of this free advertising courtesy of Google Books.
    Consider the marketing strategy of the Grateful Dead. Back in the day, they used to let us tape their live performances for free. We then traded these tapes and passed them on to others. And guess what else we did. We bought more records, and we bought more tickets to more shows. Giving away a little for free can often bring much more in return. I wonder if the Authors Guild has ever considered any of this. More snippits may well mean more sales.

    • Judy G. Russell says:

      A number of authors took the same position, Chris, and I suspect that was part of what influenced the Circuit Court to vacate the class certification and tell the trial court to go back and focus on the fair use issues. As long as it is just a snippet, that’s one thing. Whole pages or more, that’s something else altogether.

  4. Joy says:

    I have no credentials to add to my opinion, other than that of being an avid amateur genealogist. However, I have used Google books quite a bit and in each case, the snippet given was very brief, containing the name or place in my search, and only a very few other words. This served only to whet my appetite for more about the book; this would seem to be a good marketing strategy for any author. My finances are limited, so I usually try to find a book of interest in a lending library somewhere, but others might purchase it for its content. In no case, while using Google Books search, did I obtain any complete information on the person or topic being searched. Seems to me that if they limit the snippet size, as they seem to be doing now, it should fall under fair use. It is like a book review, especially targeting my field of interest. An author, or publishing house, could only win in this scenario; I would otherwise never have heard of the book I found while searching.

    • Judy G. Russell says:

      Joy, as long as it is just a snippet, Google may very well win on fair use. But I have to say that I have seen whole pages copied — and sometimes more than one whole page. And I can’t imagine that that’s going to fall within the concept of fair use.

  5. Stew says:

    Judy,
    Thanks for reporting this, and giving your perspective. As a part-time genealogist and “recovering lawyer”, let me add this:

    1. Google is bringing new technology, via electronic indexing, search and display. One needs to view “fair use” in that light. First their use (to put snips online to sell advertising), and second our uses (to search, find snips, and read/copy/buy books as a result). The net effect for most authors may be broader awareness, neutral or enhanced sales – and if so, that’s certainly “fair” to them. If, on the other hand, Google gains significant revenue from all authors, perhaps a portion of that should be either a) divided among authors or b) placed into a public trust to benefit literacy or publishing for those not otherwise able.

    2. You suggest a whole page is different than a snip. Why? The standard has nothing to do with pagination, it has to do with substance compared to the whole work. An author’s copyright cannot protect a word, phrase, or modest portion from my fair use and copying or repeating it – including on the Internet. But if I have used such a large part as to deter sales, “take the work”, or truly infringe on her rights as an author, that is actionable and compensable.

    3. If the snips vary, that will provide an interesting problem. Do we look at the snips displayed at a moment, or all of them over time? Will some enterprising programmer be able to collect different time-based snips into a larger work? That would be a problem for Google … and feel like the magician using sleight of hand to avoid “the system” of copyright protection.

    These are knotty problems for courts, and society.
    I was thrilled to be in the Supreme Court, a first Monday in October, hearing Sony vs. United Artists argued to the justices. And a key question was “Is there any evidence in the record that significant librarying of movies is occurring?”, to which UA’s lawyer had to say “No.” Imagine if the case had been heard a few years later, when librarying of VHS videos became more commonplace … perhaps Sony would have been guilty of aiding copyright infringement, and an entire market of VHS/DVD recorders would have been snuffed out in its infancy. We are on a similar threshold, today.

    May we live in interesting times …
    Stew

    • Judy G. Russell says:

      Interesting times, indeed, Stew. How to determine what is and what isn’t fair use given the technology is going to be the challenge of the next few years, no doubt about it. But for the record Google did offer some (presumably fairly small) portion of its revenues in the proposed settlement with the Authors Guild that was shot down by the trial judge.

  6. Rich says:

    I thought the issue was that Googole COPIED the entire copyrighted book without permission, not that they are showing snippets.

    After all, how can they show a pertinent snippet to someone executing a search without having a copy of the ENTIRE book? So, they have possession of the entire book without having purchased it or received permission to copy it and are using the ENTIRE book to select appropriate snippets from for commercial purposes.

    Let’s not forget that Google’s business is to sell ads, not books, and this is just one more tool for them to use to drive people to view their ads. Certainly the people who created the content that Google is displaying to sell their ads and make a profit should receive some sort of compensation for the use of their works.

    • Judy G. Russell says:

      Once again, for the record, in the settlement that the trial judge rejected, Google did agree to pay some portion of the ad revenue to the authors.

    • Stew says:

      Rich,
      A fine point: I doubt that they were able to scan the whole book (to make snips) without purchasing the book. Once you, I or Google purchase it, you are free to make an electronic copy, or photocopy, or photograph of it … it is the _distribution_ or publication of a copy without author permission that is a violation of the copyright. Not the act of copying or scanning. At least, as I understand it.

      • Judy G. Russell says:

        I’m sure that the entire question of how the copies are made and under what circumstances will be fully explored either in litigation or in any settlement that rsults, Stew. But as a general matter copyright law does reach the question of copying by itself. See 17 U.S.C. § 106: “the owner of copyright under this title has the exclusive rights to … reproduce the copyrighted work in copies…”

  7. So class certification is the pivot. That’s very intriguing! Personally, I’d like to see Google win, so that they can put whole pages of books–including my own three books–online. At least then these books will get read, instead of hidden in anonymity or whatever, and some people would surely be interested enough to buy them. Probably few peeps would buy a book if they are looking only for a couple of pieces of information. But they might tell others that the book is available for sale.

    Here’s my case. For a year I’ve been looking for two important books on South Carolina history, which discuss exactly my family lines–Crofts and Boones. I’d buy both books for a reasonable or even somewhat pricey price. But they’re not for sale on Amazon or anywhere else. AND they are not available on my trusty fallback, Interlibrary Loan. They exist only in a few libraries in this country. This summer I will be allowed to see them at the University of South Carolina Library, where they must stay (can’t be checked out), and I will be allowed to photocopy only 5% of the pages.

    I’ll do my best within those restrictions, but I can’t see how this blinkered interpretation of “copyright” or whatever serves either the author or the reader. Why publish a book if people can’t get to it??

    • Judy G. Russell says:

      The problem of out-of-print works is certainly going to be an issue, Mariann. Not sure how the courts will handle that down the road.

    • Gareth Wharton says:

      Maybe take a decent quality digital camera into the library and take pictures of the pages. The quality is usually still readable but sometimes slightly blurry. In some cases this legal nonsense just harms people and benefits no one except lawyers — in your case, as you said, likely the authors, perhaps deceased, would want people to benefit from their work. Whats the point of making a book if no one can use it.

      • Judy G. Russell says:

        That “legal nonsense” is what keeps authors writing and publishers publishing. Take that “legal nonsense” out of the equation and we all lose.

  8. Rondina says:

    Judy, what is a “slip opinion?”

    • Judy G. Russell says:

      Ooooh. Neat question. Idea for a blog post. Down and dirty answer: an as-yet-unpublished opinion issued by the court. Think the typed version that is now usually put online as a PDF.

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>