Dec 27 | 2013

Ruling in Google Books Case Could Have Huge Impact on Publishers and Authors

In a key legal victory for Google Inc., a federal appellate court in New York has ruled that the Google Books Library Project is protected by the Fair Use doctrine of Copyright Law.  The decision ends years of litigation surrounding Google’s massive book scanning project and creation of an online book database.

Beginning in 2004, Google began working with major research libraries to create digital copies of books in their collections.  Google’s intent was to create a searchable online database of those books.  By digitally scanning copyrighted books without the permission of rights holders (e.g., publishers or authors), Google ran afoul of the exclusive rights of reproduction, distribution, and public display to which owners of copyright are entitled under the law.  As a result, authors and publishers sued Google in 2005 for copyright infringement.  Google defended its actions based on the Fair Use doctrine of the Copyright Act, which shields one from liability for the unauthorized use of a copyrighted work in limited situations such as criticism, comment, news reporting, teaching, scholarship, or research.

Judge: Library Project = Transformative Use and Public Good
Attempts to settle the matter between Google and the author and publisher groups ultimately failed, so the case was decided on its merits.  Ruling in Google’s favor, the judge determined that Google’s actions fell reasonably within the Fair Use doctrine.  Specifically, the judge held that Google’s use (i.e., scanning) of the books was “transformative,” because the underlying books were being used for a new purpose, namely, a searchable online database.  A “transformative” use of something falls within the Fair Use doctrine.  Moreover, the judge felt that the public benefits of creating a large-scale searchable online database of scanned books outweighed any potential harm to the rights holders.  According to the judge, such benefits include providing a new and efficient way for readers and researchers to find books; facilitating text-mining for large-scale research purposes; expanding access to books to those constituents not served by large research libraries; preserving old and out-of-print books in a digital environment; and benefitting authors and publishers by providing links to sellers of the book.

Limitations Played Key Role in Outcome
Other important factors leading to Google’s victory were the fact that Google only made snippets of each book (as opposed to larger portions of the books)  available for viewing.  Also, there was no evidence that Google directly commercialized the books by selling entire digital copies, or that Google sold the snippets in its database, or that Google made money by running advertisements on the pages where the snippets were located.

Moving Forward
Google is not the only entity to recently receive a legal victory for its unauthorized digital scanning and accompanying database.  A consortium of the research libraries that partnered with Google developed its own online repository of books – the HathiTrust Digital Library – with the digital copies that Google provided them after scanning them.  As with the Google case, the Author groups sued the consortium for copyright infringement and lost on the Fair Use doctrine – again, losing to the transformative use principal.  The HathiTrust case is on appeal, but the chance of reversal is slim in light of the more recent Google decision in the same court.

These two cases establish – for now – the legality of digitizing books without permission—as long as the books are not made available online in their entireties and there is no evidence of direct commercialization by the entity that digitized the book.  As a result of these decisions, it is probable that other companies (e.g. or library consortiums will seek ways to undertake their own digitization efforts all in the name of enhancing the public good.

If you are a publisher or a book author, what should you do to protect your rights?  Here are some tips:

  1. Monitor Google Books and other online databases for possible misuses of 5-10 of your most proprietary works; possible misuses would be that your works were scanned and posted online in their entirety without your consent, or Google or another database owner is somehow commercializing its scanned images of your works
  1. Always register your proprietary works with the U.S. Copyright Office within the statutory timeframe in case you do learn of an infringement or misuse of your works.  Not only is registration a prerequisite for filing a copyright lawsuit, but if you register your work within three months following the date of publication, you can be eligible for statutory damages (which could potentially increase your monetary award in upwards of $150,000 per infringement)
  1. “If you can’t beat them, join them.”  You can participate in the Google Books Partner Program by uploading your books to its database.  The difference between going this route and Google scanning on its own is that you will remain in control as to what Google can and cannot do with any works of yours that it scans