Felix Stalder on Thu, 14 Nov 2013 21:47:29 +0100 (CET)

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<nettime> Google wins book-scanning case: judge finds “fair use,” cites many benefits

[I'm somewhat conflicted about this. While I'm generally glad to see
fair use expanded, I think the judge misunderstood Google's business
model when citing in favor of favor of that Google "does not sell the
scans" as evidence of its benign character. They clearly wouldn't do it
if they were not convinced that making these books searchable is adding
to their bottom-line by refining user profiles. Felix]


Google wins book-scanning case: judge finds “fair use,” cites many benefits
By Jeff John Roberts

The long-running copyright fight between Google and the Authors Guild is
over: Judge Denny Chin issued a resounding ruling in favor of fair use.
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Google has won a resounding victory in its eight-year copyright battle
with the Authors Guild over the search giant’s controversial decision to
scan more than 20 million books from libraries and make them available
on the internet.

In a ruling (embedded below) issued Thursday morning in New York, US
Circuit Judge Denny Chin said the book scanning amounted to fair use
because it was “highly transformative” and because it didn’t harm the
market for the original work.

“Google Books provides significant public benefits,” Chin wrote,
describing it as “an essential research tool” and noting that the
scanning service has expanded literary access for the blind and helped
preserve the text of old books from physical decay.

Chin also rejected the theory that Google was depriving authors of
income, noting that the company does not sell the scans or make whole
copies of books available. He concluded, instead, that Google Books
served to help readers discover new books and amounted to “new income
from authors.”

The ruling is being hailed on Twitter by librarians and scholars, who
intervened in the case to urge the court to declare that Google Books
was fair use — a four-part test that seeks to balance the rights of
authors against broader interests of society.

“This has been a long road and we are absolutely delighted with today’s
judgement. As we have long said Google Books is in compliance with
copyright law and acts like a card catalog for the digital age – giving
users the ability to find books to buy or borrow,” Google said in an
emailed statement.

Author’s Guild Executive Director Paul Aiken said by email that the
group would appeal the decision. He added:

“We disagree with and are disappointed by the court’s decision today.
This case presents a fundamental challenge to copyright that merits
review by a higher court. Google made unauthorized digital editions of
nearly all of the world’s valuable copyright-protected literature and
profits from displaying those works. In our view, such mass digitization
and exploitation far exceeds the bounds of the fair use defense.”

The decision itself comes as a volte-face for Judge Chin, who expressed
major skepticism about the project in a highly-publicized 2010 ruling
that blew up a three-part deal between Google, publishers and the
Authors Guild that would have created a market for the scanned books.
Chin also agreed last year to allow the cases to proceed as a class
action — but the U.S. Second Circuit Court of Appeals reversed that
decision and ordered Chin to instead rule on the fair use question.
Thursday’s ruling is effectively an acknowledgment by Chin that the
higher court (on which he now sits) wanted him to find fair use.

The ruling is unlikely to sit well with some authors, including Scott
Turow, who have decried Google’s scanning as an indignity and a money grab.

The latter idea — that Google is profiting off the books at the expense
of authors — has been a rallying cry for opponents of the book scanning.
Chin’s ruling, however, takes care to reject the notion in detail, and
states that Google “does not engage in the direct commercialization of
copyrighted works.”


Chin’s ruling is also likely to be decisive in a companion case between
the Authors Guild and the HathiTrust, a group of university libraries
that have created a shared corpus of digital books for scholars and
students. The HathiTrust case is on appeal, but the group’s victory at
the lower court stage may have paved the way for today’s decision:

    The HathiTrust case really clinched this. "If there is no liability…
on the libraries' part, there can be no liability on Google's part."—
    Tim Carmody (@tcarmody) November 14, 2013

The ruling is below with key portions underlined. For more perspective,
see Mathew Ingram’s “Whatever you think of Google, the book-scanning
decision is the right one.” (For more background, see my ebook The
Battle for the Books: Inside Google’s Gambit to Create the World’s
Biggest Library.)


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