A Massive Dose of Fair Use: Judge Grants Summary Judgment to Google in The Author’s Guild, Inc. v. Google Inc.

Judge Chin of the Southern District of New York issued a long-awaited (and, doubtless, soon-to-be-appealed) decision:  dismissing, as a matter of summary judgment, the lawsuit that The Author’s Guild brought against Google. I leave it to each reader (and to each author) to determine whether the result is good or bad, but I must disagree with the court’s reasoning. 

As you probably know, Google digitally reproduced millions of copyright books, scanned from libraries across the country, without the authors’ consent, and making “snippets” of them available online.

A little procedural background:  Judge Chin had rejected a proposed settlement of this case on the grounds that it was unfair; had granted plaintiffs’ motion for class certification; and had class certification vacated by the Second Circuit Court of Appeals, on the grounds that he should first determine whether the copyright infringement claim was barred by the fair use doctrine.

Today (11/14/13), the judge held that the fair use defense trumped the plaintiff’s claims.

Starting with the assumption that such copying without consent was copyright infringement, Judge Chin weighed the four factors of fair use.  He was largely convinced that the massive digital project was “transformative”, citing to the amici briefs of the Library Association (which was glad to have library books preserved and accessed) and the National Federation for the Blind (which was glad to have the books accessible, by conversion to audio and tactile formats).  He also determined that the project actually helped publishers and authors, because researchers could identify and then purchase books.

Judge Chin continued:  As for the nature of the copyrighted work, all the books had, by definition, been published, so that also weighed in favor of Google. The third, “amount used” factor weighed slightly against a finding of fair use, because Google scans the entirety of each book in order to make it searchable.  Judge Chin was dismissive of the fourth, “effect on potential market” factor.  He wrote that “Google does not sell its scans, and the scans do not replace the books.”  It was unlikely, he reasoned, that multiple snippets could replace a book.  Rather, the scans enabled readers to identify and buy the books, thus increasing the authors’ audiences.  In his “fifth”, overall assessment, the judge waxed prosaic about Google’s project being a boon to the arts, culture, science and society at large.

This is a hugely important decision.   (Huge, multiplied by millions of pages.)  However, I’m not convinced of the initial determinative factor:   whether Google’s copying is transformative.  In other decisions, courts have noted that a photograph of a sculpture does not “transform” the sculpture; that’s just a change in media.  To my eye, digitization of entire books is a mere change from one medium (paper) to another (bits and bytes).  I cannot deny that such copying is useful, but usefulness is not the same as transformation – any more than reproducing a hardback book into a paperback made the book easier to carry, but didn’t substantively transform it.  But as I’ve written elsewhere, once a judge determines that the infringing work is transformative, it’s all over for the plaintiff.

Okay, the nature of the work (published versus non-published) is a give-away to Google, but the third, “amount used” factor?  How can the copying of entire books weigh only “slightly” against the copier?

The biggest factor in this case, I think, is the fourth one – because I think it informed the judge’s opinion as to the first factor (transformation):  whether you believe that more books will be purchased, because a researcher discovers, identifies, and spends money to get the original source – or whether fewer books will be purchased, because the researcher will gladly take a supportive sentence or two, abbreviate the research, and move onto the next snippet rather than pay a penny for any of the many, many books he/she is accessing.

To my eye, if the Google book project is truly “fair use”, Google can and does provide us with a world of digital CLIFF NOTES, READER’S DIGEST synopses – faster, more efficient, and with fewer authors to pay.  Whether that’s a good thing or bad thing depends on weighing the need for faster, more efficient information, against a paycheck for the writer.

At least, that’s what I think today.  I welcome your thoughts.