Digitizing Books Is Fair Use (Again)

Google Books is a useful research tool.  It permits you to scan the contents of millions of books that Google paid to have digitized.  If the book is in the public domain, you can see the entire text of the book.  If the book is still under copyright, you can still see the entire text (if the copyright owner has authorized it), or you can at least see the book's table of contents and "snippets" of some of the book's text.  Either way, Google directs users to places like Amazon where you can buy an authorized copy.

Google obtained many of its books through a deal with major university libraries, including the University of California and the University of Michigan.  The libraries loaned the books to Google, which scanned the books and returned the books to the libraries with a copy of the digital scan.  Google used the digital scans for its own Google Books tool, and the libraries used the scans as well.  The libraries set up a trust, the HathiTrust, to coordinate their use of the digital scans.

In 2005, The Authors Guild sued Google for copyright infringement.  Google's main defense was fair use: that the copyright laws permitted Google's limited copying, especially given the enormous educational benefit of being able to search millions of digitally scanned books.  In August 2012, EFF and several library associations filed an amicus brief supporting Google's fair use defense, which I helped to write.  In the meantime, The Authors Guild had also sued the HathiTrust for copyright infringement.  

 

 In October 2012, one district judge granted the HathiTrust summary judgment that its acts were fair use.  (For procedural reasons, the HathiTrust case got to summary judgment before the earlier filed Google case.)  Yesterday, the district judge assigned to the Google case agreed, and granted Google summary judgment of fair use.

 

The court's opinion relied on EFF's and the libraries' amicus brief in several places.  Citing our brief, the court said:

Google Books has become an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it facilitates finding and checking citations.
    . . .
Google Books facilitates the identification and access of materials for remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans.
    . . .
"Thanks to . . . [Google Books], librarians can identify and efficiently sift through possible research sources, amateur historians have access to a wealth of previously obscure material, and everyday readers and researchers can find books that were once buried in research library archives."

 The court thus concluded that Google's digital scanning was fair use:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

An excellent opinion by Judge Chin!  The Authors Guild has said they will appeal, and indeed the previous case against the HathiTrust is already on appeal.

Here are blog posts by EFF, Techdirt, Joe Mullin for Arstechnica, and Eric Goldman.