Chin's breakdown of the four factors of fair use:
Quote:
1) Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
2) The second factor is "the nature of the copyrighted work." 17 U.S.C. § 107(2). Here, the works are books – all types of published books, fiction and non-fiction, in-print and out-of-print. While works of fiction are entitled to greater copyright protection, Stewart v. Abend, 495 U.S. 207, 237 (1990), here the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and available to the public. These considerations favor a finding of fair use.
3) Google scans the full text of books – the entire books -- and it copies verbatim expression. […] Here, as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search.
On balance, I conclude that the third factor weighs slightly against a finding of fair use.
4) Google does not sell its scans, and the scans do not replace the books. … To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered….
Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences. Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.
Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use.
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Nothing flashy, no great tweet-worthy quotes to grab, just a solid writeup of the background and a conclusion that no, Google Books does not infringe author's copyrights.
I have to wonder what the Author's Guild actually wanted--to shut down Google Books? To be paid a royalty of their choice every time one of their books turned up in a search (at which point, Google would just exclude those books from search; I'm sure that'd go over really well)? Maybe a portion of Google's profits for the entire time G'books has been active... which doesn't seem to be likely even if they'd won. (The appeal would've been intense--I could see Google arguing that they shouldn't be penalized because no reasonable person could know whether or not copyright was infringed in this situation. Google certainly has the resources to spend years getting the courts to wrangle that one.)
So glad this is over, and that it got such a clear and solid ruling. It'll set the groundwork for all sorts of small businesses based around research based on scanned texts, and it may be a solid foundation for those "buck a book" scanning sites. (Which isn't true; it's a buck-per-100-pages.)