The Second Circuit Court of Appeals just dropped a bombshell, ruling against the Authors Guild in its bid to force Google to stop scanning books and making them searchable.



Search results from Google Books only shows snippets or pages from the scanned books, similar to the snippets from copyrighted Web-pages that all search-engines display in their search results. As with its Web-search, Google Books allowed rightsholders to opt out of having their books included in search-results.

The Authors Guild argued that this wasn't fair use. Their initial suit — a class action brought on behalf of authors all over the world, including high-profile authors who were in favor of Google Books — was an attempt to get a relatively small sum out of Google — about US$70M. Google quickly acceded to these terms, and would have been foolish not to: by establishing the principle in law that you can only make a book search product with rightsholders' permission, and by securing some version of that permission for themselves, Google would have ensured that it was not only the first search-engine to feature results from the whole of human printed literature, but the last search-engine to do so as well.

Luckily, a court rejected the settlement, and the case pressed on.

Google fought this case hard, as well they should. The aggregate value of all the copyrighted Web-pages they've indexed certainly exceeds the value of all the books ever printed, and no one seriously argues that Google ingesting those documents, indexing them, and serving back snippets from them is a copyright violation. Had the Second ruled that book scanning for the purpose of indexing and serving search-results wasn't fair use, it would have challenged the very idea of search engines.

While we recognize that in some circumstances, a commercial motivation on the part of the secondary user will weigh against her, especially, as the Supreme Court suggested, when a persuasive transformative purpose is lacking… 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, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.

The Second Circuit ruling is remarkable for many reasons. First, the venue: the Second, which incorporates publishing's home base in New York City, is a court that is generally favorable to rightsholders. This isn't the first time the Second has surprised copyright extremists, though: last year, the court ruled that the Hathi Trust's noncommercial/academic book-scanning project was also fair use, making this the second high-profile loss for the Authors Guild in two years.

The Hathi Trust ruling completely freaked out the Authors Guild and copyright maximalists everywhere. The Copyright Office, which is friendly to those interests, was motivated by Hathi to create a bizarre, incoherent proposal to put the Authors Guild in charge of who can use literature in America, giving them the power to collect license payments on behalf of writers who never joined the organization, including anonymous and long-dead writers — this, of course, would give the Authors Guild more money with which to launch foolish, doomed, high-profile lawsuits.

The Librarian of Congress is retiring after a generation in office and may well be replaced by someone who believes in fair use and user rights and a balanced approach to copyright, and since the Librarian of Congress controls the Copyright Office, the people outraged by Hathi are totally flipping out and calling for the separation of the Library of Congress and the Copyright Office, so that they can continue to have outsized influence over the future of creativity, culture and scholarship in America.

The Google Books ruling will only make this fight more intense. Appointing a new Librarian will be one of Obama's last acts in office, and the Democratic party is deeply riven by internal disputes between the netroots and the big entertainment companies who are its financial backers. The war-rooms of both camps are definitely buzzing this morning.

I'm no Supreme Court expert but it seems unlikely to me that SCOTUS would hear this case. If there were a bunch of different rulings from different circuits on this question, maybe the Supremes would intervene to create some clarity, but when the circuit that's most favorable to rightsholders repeatedly says they're in the wrong, I think the Supreme Court will be likely to believe them.

Google Books is hardly an unalloyed good. Moving books into the realm of electronic search subjects readers to an unprecedented level of surveillance over their reading-habits, and having the corpus of all literature in the hands of one company is terrible news for our cultural future (having it all in the hands of five giant publishers or one giant bookseller isn't much better, mind). But the Authors Guild had pursued a foolish adventure that, in the settlement proposal, would have made Google the permanent gatekeeper to literature, and in the lawsuit, could have killed the idea of search engines altogether.

Be sure to read Techdirt's highlights from the judgement, which does a great job of calling out the way the judges applied copyright to the questions raised by the case.

Authors Guild et al v Google [PDF]

Google's book-scanning project legal: U.S. appeals court

[Reuters]

(Image: Librarians Against DRM, Listen to My Voice, CC-BY-SA)