Google Dealt Blow in Book Scanning Lawsuit

[Ninjalawyer]

From Ars Technica here:

The coalition of authors suing to stop Google Book Search scored a key victory on Thursday as the judge overseeing the case ruled that three individual authors and the Author's Guild could represent the class of all authors whose works had been scanned by Google. Google had sought the opposite result, arguing that including all authors in a single lawsuit would make the case too complex, and that most authors actually supported the scanning project.

And later in the article:

The ruling is an important victory for the authors because it would have been financially difficult for the three individual authors to carry the lawsuit forward on an individual basis. Thursday's ruling means that plaintiffs' lawyers will be more interested in taking the case in expectation of hefty damages if the authors win. The plaintiffs will also be able to rely on the resources of the Author's Guild to cover their legal costs. So now the case can move forward to consider the merits of Google's fair use arguments.

Generally, I think this book scanning project is good for Google, good for authors and good for society. The idea of having a huge chunk of works easily searchable is good for researchers, and good for authors who may be able to pick up a few more sales that way. Plus it's great for preserving works that would have been lost otherwise.

According to the Google Books' blog: "Copyright law is supposed to ensure that authors and publishers have an incentive to create new work, not stop people from finding out that the work exists. By helping people find books, we believe we can increase the incentive to publish them. After all, if a book isn't discovered, it won't be bought."

[Ninjalawyer]

One of the commenters to the article had an interesting anecdote:

My first job out of college was working IT at Questia, which at the time was in start-up mode. The company was building a digital research library with a launch goal of having 50-60k digitized books and another 100-200k digitized magazines and scholarly journals. The books would be scanned and OCR'd and XML tagged, with the pagination and images preserved, and would be full-text searchable.

The thing is, Questia had about 300 people JUST doing copyright research. There were a large number of public domain books that they included, but they employed a set of professional librarians to do the book curation, and the vast majority of the books to be included were under copyright. Those 300 copyright researchers worked 10-12 hours a day tracking down who held the copyright for each individual book and then attempting to negotiate with the copyright holder. I believe when we actually hit launch, there were about 30k books digitized and ready to go.

Let me say that again: 300 people working 10+ hours a day, for almost two years, managed to only secure the rights to ~30,000 books.

When Google announced their book scanning project, the first thing I thought was that they were entering into a world of pain with the copyright negotiations--every publisher wants its own set of terms and few want the same things. I remembered those poor researchers at Questia, and wondered how Google was going to do it all.

Turns out Google went with the path of least resistance: "Fuck it, we're Google, just start scanning." Blows my mind.

[stonetools]

Article providing useful background:

THE AWL.

Hellzapoppin' in the world of intellectual property rights these days. Lawsuits, corporate flim-flamming, the claims of far-sighted academics and developers, furious authors and artists and the conflicting demands of a sprawling Internet culture have created a gargantuan, multi-directional tug-of-war that will inevitably affect what and how we will be able to read online in the future. Recent developments indicate, amazingly, that there are grounds for hope that the public will in time benefit from the results of this epic tussle.

In 2002, Google began scanning the world's 130 million or so books in preparation for the "secret 'books' project" that eventually became Google Books. In 2004, they began offering access to these scans, displaying the irritatingly-named "snippets" of books in their search results. And in no time at all, they were getting sued by the Authors Guild and the Association of American Publishers for copyright infringement. These lawsuits, plus two more that were filed subsequently against Google, resulted in a six-year rollercoaster ride that, like all good roller coasters, exhilarated, terrified and rattled all the participants, and ended by thumping their quaking bods to a halt, last March, in very nearly the same place from which they'd started out. But during that time the world had changed, and an altogether new way of bringing printed books into the digital commons had emerged. Enter the nonprofit alternative for bringing the world's books online for all readers: the newly-funded Digital Public Library of America.

SFF author Ursula. K. Leguin is dead set against the Google project, resigning from the Author's Guild when the AG tried to settle with Google. For her viewpoint, go HERE.

[murraypaul]

Originally Posted by Ninjalawyer

Generally, I think this book scanning project is good for Google, good for authors and good for society.

But not actually legal.
If it would benefit society (as I tend to agree that it would), then the correct response is to do what France has done, and change the law to allow it, not to allow one commercial entity to just ignore the law.

[petrucci]

Stealing intellectual property is standard procedure at Google. They display photos and sections of text from other websites without first obtaining permission from the copyright holders. Sadly, such actions push other businesses to violate copyright just to try to keep afloat.

I hope that the court sides with the copyright holders. However, I think that it is unlikely to happen.

[stonetools]

Analysis by law professor HERE:

Money quote:

The key question at issue here was whether “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit,” which focuses on “matters of administrative convenience and efficiency.” The associations simplified things by asking only for injunctive relief against future copying, rather than damages. Google simplified things by scanning lots of books without permission. (Here, as in many other places, Judge Chin characterizes Google’s conduct in ways that have to have its lawyers worrying: he emphasizes the lack of permission and the mass nature of its scanning and displays.)

Copyright ownership, Judge Chin concludes, will not require significant individualized proof. Google objected that the actual details will be highly complicated, given the diversity of contracts in the industry. But Judge Chin has a good comeback. Copyright registration records provide prima facie proof of ownership. In a footnote, he turns Google’s argument neatly back on Google: “To the extent Google wishes to rebut such evidence, it may seek to do so on a case-by-case basis.” Ouch.

There follows a beautifully pragmatic point. Yes, some authors will have assigned away their complete copyright interests, retaining no royalty rights, and therefore will not be “beneficial owners” with standing to sue. But it will be much easier to ask authors to produce their contracts to show that their books are included in the class than to force them to sue Google individually. This portion of the opinion offers Google its best news of the day, I think: the company could throw some serious sand into the class action gears by making thousands or millions of authors pull their contracts out of the closet.

[Kali Yuga]

Originally Posted by Ninjalawyer

Generally, I think this book scanning project is good for Google, good for authors and good for society. The idea of having a huge chunk of works easily searchable is good for researchers, and good for authors who may be able to pick up a few more sales that way.

This isn't about search.

It's about Google violating millions of copyrights, and forcing authors to opt out of their system.

It would be like Random House grabbing books off a library shelf that were written in 1930, not published by RH, putting out electronic versions, without asking authors for permission, without checking anyone's copyrights, and dictating royalty rates. I can only imagine the digital screeches that would result from such actions. (Why Google gets a pass is beyond me.)

Not to mention that Google's book efforts are, to put it mildly, not fantastic and not well supported. As far as I know there is no proofreading, which means lots of OCR errors. The website layout is terrible on small screens. PW believes their market share is hovering around 4%. Google has also already pulled its affiliate services, which let small or indie stores resell Google ebooks on their own sites.

[Ninjalawyer]

Originally Posted by murraypaul

But not actually legal.
If it would benefit society (as I tend to agree that it would), then the correct response is to do what France has done, and change the law to allow it, not to allow one commercial entity to just ignore the law.

Actually, it's not clear that it's illegal. Google has a fairly compelling fair use defense.

[BeccaPrice]

Originally Posted by Ninjalawyer

Actually, it's not clear that it's illegal. Google has a fairly compelling fair use defense.

Do you have a link? because I can't think how wholesale scanning for profit has a fair use case to be made. (but then, I'm not a lawyer.)

[murraypaul]

Originally Posted by Ninjalawyer

Actually, it's not clear that it's illegal. Google has a fairly compelling fair use defense.

The four standard factors to be considered in a fair use defense are:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Here:
1. The use is of a commercial nature. Google want to sell the scanned books, and also to use them to drive more page views, and hence more advertising.
2. The works are 'normal' works that have previously, and may still be, commercially available.
3. Google is scanning the entirety of each work.
4. Google making the work available must significantly reduce the value of the ebook rights of the work.

Doesn't seem like there is a huge amount of wiggle room there.

[kennyc]

Too bad. I can see both sides of this.

[Ninjalawyer]

Originally Posted by Kali Yuga

This isn't about search.

It's about Google violating millions of copyrights, and forcing authors to opt out of their system.

It would be like Random House grabbing books off a library shelf that were written in 1930, not published by RH, putting out electronic versions, without asking authors for permission, without checking anyone's copyrights, and dictating royalty rates. I can only imagine the digital screeches that would result from such actions. (Why Google gets a pass is beyond me.)...

I would suggest avoiding such definitive statements like your first sentence, as it's certainly not clear that Google has violated millions of copyrights. As far as opting out goes, Google actually has a very good fair use argument and may not have to provide an opt-out at all.

To be clear, Google is not just making books available for free - the controversy is Google scanning the books at all to make them searchable and providing "snippets" or previews of the books.

From Wikipedia:

A click on a result from Google Books opens an interface in which the user may view pages from the book, if out of copyright or if the copyright owner has given permission. Books in the public domain are available in "full view" and free for download. For in-print books where permission has been granted, the number of viewable pages is limited to a "preview" set by a variety of access restrictions and security measures, some based on user-tracking.[2] For books where permission for a "preview" has been refused, only permission for "snippets" (two to three lines of text) may be permitted, but the full text of the book is searchable on this limited basis. Where the owner of a book cannot be identified, a "snippet" view may be implemented. For other books that have neither a "full view", nor "preview", nor a "snippet" view, the text is not searchable at all, and Google Books provides no identification of content beyond the book title. For this reason, Google-Books searches are an unreliable indicator of the prevalence of specific usages or terms, because many authoritative works fall into the unsearchable category.

Most scanned works are no longer in print or commercially available.[3] For those which are, the site provides links to the website of the publisher and booksellers.

There are groups in the publishing community that question whether any third party should be able to copy and index copyrighted works so that users can search through them, even if all a user sees is the bibliographic information and a few snippets of text. This really serves to make certain books more widely discoverable online and help the authors and publishers sell more of them (if they're still in print).

[Ninjalawyer]

Originally Posted by murraypaul

The four standard factors to be considered in a fair use defense are:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Here:
1. The use is of a commercial nature. Google want to sell the scanned books, and also to use them to drive more page views, and hence more advertising.
2. The works are 'normal' works that have previously, and may still be, commercially available.
3. Google is scanning the entirety of each work.
4. Google making the work available must significantly reduce the value of the ebook rights of the work.

Doesn't seem like there is a huge amount of wiggle room there.

You make good points (and your breakdown of the fair use section in U.S. copyright law is correct). However, keep in mind that Google may be scanning the entirety of the book, but the amount their reproducing is only a small snippet, so there's a lack of clarity here in the law (because of the distinction between intermediate copying and final use). As far the nature of Google's use, they are not selling the books in most cases. In most cases the books are out of print, but if they are available commercially Google is providing links to sites like Amazon.

As far as reducing the value of ebooks, that is not the case. Google is not making books available for free (unless they are in the public domain or Google has permission). What they are doing is providing search capabilities for books, and an ability to buy the book if the book is purchasable. So this actually enhances the value of ebooks because it makes them easier to find.

None of the factors you list is determinative, and must all be considered. That's why this isn't an easy issue. I'm not going to say Google has a slam-dunk with a fair use argument, because they don't. But it's also not a slam-dunk that Google is violating copyright either. There's fundamental legal questions that haven't been answered yet, so no one can say definitively.

Originally Posted by BeccaPrice

Do you have a link? because I can't think how wholesale scanning for profit has a fair use case to be made. (but then, I'm not a lawyer.)

There's a (very) long legal analysis here from the New York Law School Law Review. I'd be lying if I said I'd read all 140+ pages of it, but there's an interesting analysis if you scroll down on the issue of fair use with respect to Google books.

[QuantumIguana]

It may very well enhance the value of the books. If people search for them and find a snippet, they may want to seek out and buy the book. Without it, readers might have never heard of the book.

[murraypaul]

Originally Posted by Ninjalawyer

As far the nature of Google's use, they are not selling the books in most cases. In most cases the books are out of print, but if they are available commercially Google is providing links to sites like Amazon.

The purpose is commercial though, Google aren't doing this for the good of humanity, but for their own commercial gain. In the same way that MegaUpload/TPB/etc... didn't make money directly from enabling infringement, but did make money from the advertising revenue driven by allowing the infringement.

As far as reducing the value of ebooks, that is not the case. Google is not making books available for free (unless they are in the public domain or Google has permission). What they are doing is providing search capabilities for books, and an ability to buy the book if the book is purchasable. So this actually enhances the value of ebooks because it makes them easier to find.

That is a reasonable point.
Although I'm pretty certain their end goal is to sell copies of books that are otherwise not available.