Tag Archives: Google Books

Authors Guild v. Google: Judge Chin’s decision in favor of Google Books

Originally posted 2014-12-31 08:20:33. Republished by Blog Post Promoter

Anyone looking for the Author’s Guild v. Google decision on the Southern District of New York website is going to have a hard time: It’s working like the Obamacare website right now, probably because everyone is hitting it looking for a copy of the opinion.

Well, here it is, courtesy of Gigaom:

Google Books ruling on fair use.pdf

Blog posts at LIKELIHOOD OF CONFUSION® about this case are collected at this fairly recent post.

Guest Post: Fair Use or Foul Ball?

Gregory Winsky

Gregory J. Winsky of Archer & Greiner, PC

See below for more information about my colleague Greg Winsky, who is just snarky enough to merit a guest post on LIKELIHOOD OF CONCLUSION on a topic I’ve been covering — and inviting guests to cover — for years despite his being way overqualified as a real, live intellectual property lawyer.

When copying 20,000,000 books without permission is not copyright infringement

Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly  over the foul pole boundary of the short porch in right.

In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).

The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.

BallFourStating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”

The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”

Read More…

Google Books settlement takes it on the Chin

I raised questions about the Google Books settlement ages ago.

Now some of them have been answered, and Judge Denny Chin’s answer is “no”:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] would simply go too far.  It would permit this class action – –  which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of  “snippets” for on-line searching – –   to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors,rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyondthose presented in the case. . . .

Read More…

Fair Googling a la Mode

Via the In the Agora blog, an update, with useful links, on the suit against Google by Agence France-Presse. Best link is to this article by the ubiquitous Professor Eric Goldman. (Note to self and 100 closest friends: Must read Goldman’s blog more often.) Most interesting, Europhobic (that’s me) angle: France itself is cooking up a project to rival Google’s announced plan to “scan millions of books and periodicals into its popular search engine over the next few years.”

Well, nothing like one of those Eurostate-financed boondoggles to suck the wind out of what’s left of that economic juggernaut. If I weren’t buying Google for the incredible up-side, maybe I’d buy it to beggar France!

UPDATE:  The French… let’s not say “surrendered.”  They worked something out with Google, in June of 2012.  But, of course.

The Google Library Project and the dog that didn’t bark — yet

Utah IP lawyer

Nicholas Wells, Wells IP Law

This post is the first by a new guest contributor, Utah IP lawyer Nicholas Wells, who also blogs on IP here.  I first blogged about the tiff between Google and “the writers” and the “the publishers” over the Google Books Library Project a long time ago, most recently in March of 2011.  It’s not really all over, actually, and Nicholas has generously offered to explain it all here.  Thank you, Nicholas!

It would have been fascinating to read the court opinion ending the lawsuit by a group of major publishers against Google.  But we won’t get to do that.  After seven years, the parties settled this month on undisclosed terms.  The Google Library Project can continue to scan and make available books by the affected publishers.  The publishers can choose to “opt-out” for any books they don’t want included, but for all that remain in the Project, Google can let users browse up to 20% of the contents.  Those books will also be available for purchase through Google.

Both the publishers and Google called the settlement “pragmatic” and said that the settlement “reaffirms the rights of copyright holders.”


A separate class action suit led by the Author’s Guild is unaffected by this settlement.  That class action suit remains the more interesting part of this story.   (Indeed, James Grimmelmann, a professor of law at New York Law School, told the Chronicle of Higher Education that the settlement with the publishers was “one of the least-dramatic settlements I’ve ever seen.”)  Still, Publisher’s Weekly called Google’s settlement with publishers a “huge win” as far as orphaned works—those books where the copyright holder can’t be identified and so Google can’t ask anyone’s permission.  The “win” is for Google, not the authors of the orphaned works, because there is no one to “opt out” of the Google Library Project as to those works.  They will remain part of the project and will be made available to the public—with proceeds from ad revenue and book sales going to Google, at least for the time being.

Still, that begs the question that everyone was asking when Google started the Google Library Project back in 2005:  Can Google re-interpret copyright law by doing whatever they choose and then letting the courts or the affected parties fight about it after the fact?  The obvious legal answer at the time was a resounding “No.” Read More…

One publisher’s take on the Google Books decision

Sandy ThatcherThe following appeared in an alumni email discussion list of which I happen to be administrator.  It’s a list for Princeton alumni in the legal profession, which would include Judge Denny Chin ’75, author of yet another famous opinion — this time, Authors Guild v. Google.  (He’s not on our list, however.)  For that reason, it was written in the form of an open letter to Judge Chin — who is, however, not (to my knowledge) a participant in the list.

The piece, by Sanford Gray Thatcher, formerly director of the Penn State University press, is published here with the author’s permission. He writes solely in his personal capacity (which he has done frequently) and not on behalf of any present or former employer. 

Dear Judge Chin,

I have just read your decision to grant Google summary judgment in this case and I must express my disappointment. You have evidently bought into the Ninth Circuit’s line of reasoning about “transformative” fair use, which I believe to be seriously mistaken.

No one questions the social utility of Google Books. Indeed, publishers recognized its utility early on. The university press I headed at Penn State at the time was the first university press to sign up for the Google Partner Program, and Google itself cited our participation as a model case in further promoting the program. But the Library Program is another matter.

You forget that Judge Newman recognized the social utility of photocopying in the Texaco case, yet nevertheless found copying in that case not to be fair use. As the judge argued:

“We would seriously question whether the fair use analysis that has developed with respect to works of authorship alleged to use portions of copyrighted material is precisely applicable to copies produced by mechanical means. The traditional fair use analysis, now codified in section 107, developed in an effort to adjust the competing interests of the authors – the author of the original copyrighted work and the author of the secondary work that ‘copies’ a portion of the original work in the course of producing what is claimed to be a new work. Mechanical ‘copying’ of an entire document, made readily feasible by the advent of xerography . . . , is obviously an activity entirely different from creating a work of authorship. Whatever social utility copying of this sort achieves, it is not concerned with creative authorship (italics added).”

In your analysis, you quote from Pierre Leval’s classic article suggesting that a new work is “transformative” if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” You go on to say:

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.”

The key mistake here is located in the words “allow for.” That is NOT what Leval said. He said that the act of fair use itself must consist in “altering the first with new expression, meaning, or message,” and Google’s computer-created indexing does not do that; there is no creativity in the functioning of Google’s computer algorithm. It is, as Judge Newman said, merely a “mechanical” procedure.

Why is this so important? It is important because there are those who will exploit the notion of re-purposing, which captures one part of Leval’s argument, to do real damage to the Constitutional purpose of copyright. Like the Ninth Circuit, they will ignore the idea that the new work must itself come from an act of human creativity that adds new meaning, etc.

I have written at length about this problem, pointing out that the ARL, in its Code of Best Practices on Fair Use (2012), uses the idea of re-purposing to argue that, because scholarly monographs and journal articles were originally written for the benefit of other scholars, not students, their use in the classroom for student instruction is fair use since the use is for a different purpose. That, effectively, means that entire articles and books can be justifiably digitized and used in the classroom without the publisher’s permission. One likely result is that the entire market for paperbacks published by university presses for classroom use will be wiped out.

Well, you might say, the fourth factor will come to the rescue there. But then why is the fourth factor not applicable to the Google case also? Google’s supplying the participating libraries with scans of the books in their collections displaced a potential market for the publishers supplying those scans. This is of some practical importance. Not long after the Google Library Project was announced, Penn State Press approached the University of Michigan Library with a proposal for the Library to have a greater range of rights to use the scanned version as licensed by the Press in exchange for the Library’s giving a copy of the Google scan to the Press so that the Press itself would not have to go to the expense of digitizing all of these books again. The Library was happy to agree to this proposal; Google was not and prevented the Library from doing so. Here, then, the “social utility” of this enterprise was directly undercut by Google itself. As a result, the Press and all other publishers whose books had been scanned by Google had to go to the expense of digitizing their own backlists. How does that kind of obstruction advance the progress of knowledge?

I have just scratched the surface here in offering this rebuttal. My arguments are laid out in much more detail in the attachments I provide. Two of these are also accessible at the web site where most of my writings about copyright are available at this link. The third is the gist of a talk I gave at a meeting of the Copyright Society of the USA last February in Austin, TX. It is there that I explore the deleterious implications of what I have called the “Ninth Circuit disease.”

As for the social utility of mass digitization, which most of us publishers are happy to recognize, it seems far better to have Congress legislate on that issue with a statute focused on it, rather than try to bring it under the ever expanding umbrella of fair use, where in my view it can only further contribute to the conceptual confusion that is already rampant.


The Google exception?

Way back when the Google Books issue first burst forth, I expressed considerable skepticism that their plan to scan the universe of books and put it on line could be described as anything besides copyright infringement.  As I wrote in my firstest post on the topic nearly four years ago:

Book him, Danno!

Book him, Danno!

It sounds like copyright infringement to me to put someone else’s entire work into a database “just to make it accessible and useful.” What am I missing?

I actually kind of softened on that recently.  Maybe Google Books is just the world’s biggest card catalog, but better?  In fact, on Likelihood of Success today, I linked to an internal page on Amazon.com — which although it is authorized by the publisher, works quite similarly to Google Books — and didn’t feel as if I were doing anything like infringing, and indeed felt more as if I might help an author sell some books.

Well, Patrick from Popehat is here to get me back on the straight and narrow:

While, as a consumer of books, I’m happy enough for myself that if this settlement goes through I’ll have access to many more than I have now, and for free, I’m deeply concerned about the fairness of this settlement to the authors themselves.  I’m sure many will be happy to get a little money they wouldn’t otherwise receive.  Others don’t know about the settlement, or don’t care.  And still others think they should have the right to control their intellectual property, absolutely. . . .

Under the Google Books class action settlement, Google, alone in the universe, would be allowed to reprint and redistribute the work of any author who doesn’t opt out of the settlement, with or without the author’s consent.  And it’s a fair bet that most authors don’t know that their rights are being bargained away.

Hm.  Maybe my glossing over the distinction between Amazon’s “search inside” feature and the Google “mandatory license” approach was error.  I do like Patrick’s point about the difference between authorization and a mere presumption of authorization.  I’m not sure I agree with his “absolutism” about controlling intellectual property, however, and I don’t think either the Constitution or cases interpreting the Copyright Act would, either.

Big issues.  This is not yet one for the books.

A new use for Google Book Search

And a whole new set of opportunities for copyright lawyers. Hat tip to Bizzy Blog.

What is a book?

Reuters reports that publishers are going to allow book browsing on their websites. Amazon, of course, started this trend. Obviously they believe they will sell more books this way — not fewer — or they wouldn’t do it.

This is a new model for copyright sneaking around the back end. It has to be this way. The world won’t hold still.

UPDATE: A nice point from Mike at Techdirt:

The question, really, is why bother? All these publishers are creating limited, expensive, fragmented searches for books, when Google (and others such as Yahoo and Amazon) are more than willing to do the work for them, while bringing all the offerings together. There are very, very few people in this world who think about books in terms of who published them. No one wants to know that they need to go to a certain place to search for a Random House book and another for a HarperCollins book. Instead, let the search engines do the work (and spend the money), and the search engines will bring in the people and help drive sales. Building separate, fragmented book searches hardly seems like a compelling or cost-effective plan.

Google Books debate

It’s all Google, all the time in our world.  (I know that because I did a Google search of our world.)  So, naturally, what’s the hottest multimedia download on the Federalist Society website?

The Google Books Settlement

New York City Lawyers Chapter

December 14, 2009

Prof. Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School and Visiting Professor of Law, New York University Law School

Mr. Jonathan M. Jacobson, Partner, Wilson Sonsini Goodrich & Rosati

Prof. Scott Hemphill, Associate Professor of Law and Milton Handler Fellow at Columbia Law School

So that’s a Google topic I last wrote about last November and have since despaired of keeping up with.  Now I can sit back and enjoy letting these guys do the heavy lifting!