It’s finally here: Google’s long anticipated, full-throated fair use defense for its library scanning program. In its motion for Summary Judgment in the Authors Guild vs. Google, filed on July 27, Google attorneys argue that its keyword searchable index of books scanned from library shelves “passes with ease” the ultimate test of fair use, because it provides “enormous transformative benefit” to the public, without “reducing the value” of any authors’ work. According to media reports, meanwhile, the Authors Guild filed "a sealed motion" for Summary Judgment by hand, with a redacted version reportedly to be filed later.
“Google Books is an important advance on the card-catalog method of finding books,” the Google brief states. “Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.” The heart of the Authors Guild case, on the other hand, Google attorneys note, is that Google “could not create those benefits without first obtaining permission from the authors of the books that were copied in the process of making the index," an argument that fundamentally misunderstands copyright, the brief states, as copyright is not a “right inherent in authorship,” but a “utilitarian concept,” created entirely by law.
“The guiding principle in this case is not a natural right of authors to control their works: no such right exists under United States law,” Google argues. “What matters instead is whether Google Books furthers the objectives of copyright laws because of the public benefits (including benefits to authors), flowing from Google Books.”
The brief comes after nearly seven years of legal wrangling, including three years the parties spent stumping together for an ill-fated settlement with authors and publishers. The settlement was rejected by Judge Denny Chin in March of 2011. Chin, however, based his rejection on the deal’s controversial, forward-looking business component, without reaching the copyright claims at the heart of the case. Now, barring an unexpected development, the case is on track to deliver a precedent-setting fair use verdict.
Next up, responses to the motions for Summary Judgment are due August 24, with replies to the responses due September 17, and oral arguments set to begin October 9.
Google’s concise, 46-page brief sticks to two major arguments: supporting its fair use defense, and attacking the Authors Guild claim that Google, legally speaking, illegally “distributed” copies back to participating libraries. And, on both counts, Google attorneys suggest, the case isn’t even close.
“Analyzing the four fair use factors together with the public benefits created by Google Books compels the conclusion that Google Books is a fair use,” the brief states. “Google Books makes use of works for the purpose of allowing readers to find them, not to read them directly. It does not preempt the publication of those works, it reproduces no more of the work than is necessary, and it does not displace any extant market for those works. It provides enormous public benefits. None of these facts is in dispute, and no court has rejected a finding of fair use on facts akin to these.”
Specifically, on the first factor, the purpose and character of the use, Google argues that the scan plan is highly transformative. “Google made digital copies of books in order to create a searchable index linking each word found in any book to all books in which that word appears,” the brief states. “Google Books does not in any way supersede the objects of the original. Books exist to be read. Google Books exists to help readers find those books. Like a paper index or a card catalog, it does not substitute for reading the books themselves, and Plaintiffs do not contend that it does.”
On the second factor, the nature of the work, there is relatively little to consider. While research cited in the brief shows that as much as 93% of the Google Books corpus is nonfiction, most of which are scholarly works, the database contains “works of every type,” thus “the nature of the works does not weigh one way or the other on a class-wide basis.” The only “relevant common consideration,” Google notes, is that all the books were published, which, they argue, weighs in favor of fair use, as unpublished works are afforded more protection under the law.
On the third factor, which considers the amount of the work used, Google, despite admitting to copying entire works, argues that it meets the standard of using no more of the work than necessary. “The Supreme Court and the Second Circuit have both held that copying the entirety of a work may be fair use where that copying is necessary to the purpose of the fair use,” the brief states. In this case, “Google scans the full text of works because full-text scanning is necessary for full-text search.” As for the snippet display, Google argues that it displays only a small percentage of the overall of the work, and no more of the work than necessary to allow users to evaluate the relevance of the search result.
As to the fourth factor, the effect on the market, Google argues there is “no reasonable dispute” that Google Books in fact benefits authors, and no evidence of any harm “flowing directly” from the scanning of books, the creation of the index, or the display of snippets. Rather, the crux of the AG’s case, the brief states, is the belief that “if Google had not used their works without payment, they might have been able to charge for those uses.”
No such licensing market exists, however, “in which authors are paid for the inclusion of books in indices or search results,” the brief states. Google points to three pieces of evidence that “place this point beyond reasonable dispute.”” First, more than 45,000 publishers make their books available for browsing in the Google partner program without payment. Second, Amazon’s “Search Inside the Book” program also does not compensate for browsing. And, last, the Authors Guild itself has recommended that its members make entire chapters of their books available for free.
“With no evidence to support their claims, [The AG] resort to speculation that, absent Google’s copying, a licensing market for the scanning and display of works in search engines might develop,” the brief states. But harms that are “theoretical and speculative” are not considered in the fourth factor analysis, Google argues, and the courts have specifically rejected such “circular arguments” because all fair uses of a copyrighted work, in theory, could be said to preempt the development of a licensing market.
As to whether Google committed an “unauthorized distribution” of copies to libraries, the argument is more technical. Although Google claims the library copies are fair use (and offers a neat defense for the libraries being sued by the Authors Guild), Google argues its role “does not involve any volitional conduct” that could amount to “distribution.” Rather, it is the libraries that make the library copies, and only of books the libraries own—Google merely provides the technology. At best, the brief states, that might create a question of secondary liability, which is not alleged here.
Are You Better Off?
The relative merits of its legal arguments aside, the Google brief is a fairly elegant defense of its scanning program, a document that stands in stark contrast to the complex muddle that was the settlement agreement of 2008. Without question, copyright is complex and fraught with technicalities—the Google brief, however, is not. Rather, it presents an effective argument not only for the district court that will decide the motion, but also for the court of public opinion, pulling the case’s ultimate, key question into sharp focus: are we better off in a world with Google Book Search, or without it?
To that end, the Google brief devotes significant space to detailing the benefits of the program. “Google Books was born of the realization that much of the store of human knowledge lies in books on library shelves where it is very difficult to find,” the brief states. “Google Books aimed to solve that problem by giving everyone access to a full-text searchable index of these books.”
The brief goes on to contrast the research methods for much of the 19th century, with those now enabled by the program—from a world of index cards and very limited bibliographic information, to a world where the text of books can be keyword searched, and then located in a library or a bookstore, within seconds.
“A search for ‘Archimedes’ using Google Books, for example, locates many thousands of books in less than one second, and returns the most relevant books that contain any reference to Archimedes,” the brief explains. “This result can be achieved only by digitizing the full texts of the books contained in the index. Without digitizing the whole book, there is no way to know whether a particular book mentions Archimedes, unless Archimedes happens to be one of the subject headings assigned to the book by the librarian who cataloged it.”
The brief also details Google’s security safeguards, and its sensitivity to the concerns of rightsholders. Regarding its display, for example, Google Books does not allow copying; At least one out of ten entire pages in each book is blacked out; And additional protections prevent automated downloading of snippets. Works that are designed to be consumed in “short chunks,” meanwhile, are excluded from snippet view entirely—no dictionaries, cookbooks, no haiku. Google also excludes works from display if a rightsholder asks, for any reason.
In addition to offering better research methods, the corpus has also enabled new types of research, the brief adds. “Text from the books was used as an input to the n-grams research project,” the brief notes, “a tool for users to determine how frequently different terms or phrases appear in books published at different times,” which “can provide insights about fields as diverse as lexicography, the evolution of grammar, collective memory, the adoption of technology, the pursuit of fame, censorship, and historical epidemiology.”
For its part, the AG has never contested the public benefit of the program; Rather it has long contended that, public benefit notwithstanding, the issue boils down to this: Google, a multi-billion dollar commercial entity simply appropriated millions of copyrighted works under the banner of fair use to create an asset of great value.
Google’s commercial nature, however, does not matter, the brief argues. What matters is whether the program meets the objectives of copyright law: to promote the progress of science and useful arts—objectives the Authors Guild would replace "with a regime of complete control by the author over all uses of his works without regard to the use’s transformative and beneficial public purpose, and even without regard to the undisputed benefits derived by the author himself," the brief concludes. “That is not the law.”