Book Scanning As Fair Use: Google Makes Its Case As Authors Guild Appeals Hathitrust Fair Use Ruling

from the make-the-case dept

Google Books is a revolutionary search technology for books—a modern and marked improvement over the traditional card catalog. Google has scanned and indexed more than 20 million books by agreement with major research libraries. The Google Books tool allows any user to enter a search query, obtain a list of books containing the user’s search terms, and view limited “snippets” of surrounding words showing how the terms are used. Google Books does not allow users to read a book online, or even a single page of a book, without express permission from the rightsholder. But its search capabilities help users find books to buy or borrow, connecting them with the books they need, and thus bringing to light a wealth of information previously hidden, undiscoverable, in books sitting on library shelves. Google Books thus offers enormous benefits to authors and readers and to the progress and diffusion of human knowledge.

Despite the individual issues at the heart of Plaintiffs’ suit—and unrebutted evidence that a significant portion of the proposed class in fact approves, and benefits from, Google Books’ uses—the district court certified a plaintiff class under Federal Rule of Civil Procedure 23(b)(3) consisting of “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project.” SPA2. That decision was error, for several reasons. First, Plaintiffs cannot adequately represent, as required by Rule 23(a), the large number of class members who would be harmed if Plaintiffs prevail—that is, the many class members who benefit economically and in other ways from the Google Books project and do not want to see it curtailed.

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Two new developments in the two big cases concerning book scanning and fair use: first up, we've got the somewhat unsurprising news that the Authors Guild is appealing its rather massive loss against Hathitrust, the organization that was set up to scan books from a bunch of university library collections. As you may recall, Judge Harold Baer's ruling discussed how the book scanning in that case was obviously fair use . It was a near complete smackdown for the Authors Guild.The appeal will cover a few different issues beyond just fair use, such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question. It would seem that the Authors Guild has an uphill battle.Meanwhile, in a closely related case, involving the Authors Guild suing Google over its book scanning efforts, Google has filed its appeal brief in response to an earlier ruling, which said that the Authors Guild can represent authors and has standing to sue. Google is arguing that its offering is also a clear case of fair use, as in the Hathitrust case. This is something we thought Google should have pressed strongly from early on.It also argues that the Authors Guild cannot represent the class of authors in the case, since many authors are helped by Google Books and don't agree with the Authors Guild that it's somehow evil. As a result of that (and how copyright law works) Google also points out that the fair use determination may need to be on a book by book basis, rather than as a whole:Not surprisingly, the argument here is compelling. Even if you don't buy the fair use argument, it's difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all. No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss.

Filed Under: book scanning, copyright, fair use, standing

Companies: authors guild, google, hathitrust