Category: Symposium on Google Books


Google Books: Opening possibilities

Fair use is uncertain. Fair use is unpredictable. Fair use is fact-specific. Fair use is “the right to hire a lawyer.”

I happen to disagree with the characterization of fair use as completely unpredictable. That story is often spread in ways that encourage individuals and organizations to feel that fair use is too scary or unpredictable to ever take a bet on. But especially in areas where case law is limited or nonexistent, there are often a lot of conflicting opinions about whether a use is fair, and many individuals and organizations feel unable to take on the risk of a lawsuit – even one that they might have a greater than 50% chance of winning.

One of the benefits of the Google Books opinion (and Judge Baer’s Hathi Trust opinion) is that “fairly definitive” case law now exists in some areas where it didn’t. Both Ariel Katz and Kevin Smith have ably highlighted some of the spillover benefits to non-Google fair users; here are a few other areas where individual or organizational actors may feel themselves to be standing on more stable ground as a result of these decisions. These are drawn both from uses I was asked about (or made aware of) long before the Google Books decision, and from uses that people have asked me about -since- the decision.

Transformative Use of A Corpus

The Google Books and Hathi Trust decisions both highlight the transformative nature of digitization of  works in order to make them searchable, and in order to make innovative analyses of mass bodies of works. This might be relevant for users who want to:

  • Equipment for scanning from Beta format tapesdigitize a collection of VHS tapes recorded off broadcast television in order to create a database or other record of which ads appeared in which order in relation to which shows, or in order to transcribe and perform computational analysis on the advertising content
  • digitize a large chunk of the comic-book art of a particular illustrator, and run image analysis programs to detect patterns in the illustrator’s composition and figure drawing over time
  • copy all extant recordings of a particular composer’s work in order to analyze patterns in performances
  • create a shared open-licensed publicly searchable database of songs transcribed into musical symbolic data
  • transcribe an entire run of a television series for scholarly analysis
  • build and share a collection of still images captured from film, TV, and other video sources for scholarly (and student?) research

Fair Use and Disability Access

An underemphasized element of the Google Books (and Hathi Trust) decisions is how directly they support the proposition that digitization in order to provide access for users with disabilities is fair use. On this point, the judges are clear that access to the entire work by people with disabilities is valued: digitization “provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices. Digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities.” (Chin decision, p. 11 – emphasis mine.)

Judge Baer is even more vehement: “[t]he use of digital copies to facilitate access for print-disabled persons is also transformative. FN: Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13–12:8″  (Baer opinion, p. 18 – emphasis mine.)

U.S. copyright statutes do provide an exception that enables access for users with disabilities, but the exception is tightly bounded and limited in terms of what types of access can be provided, by whom, and to whom. Many organizations who wished to provide services for users with disabilities have felt constrained by copyright law, and have been unwilling to rely on fair use. Perhaps people will consider these judicial endorsements relevant when:

  • adding captions to video content released without themSmall white plastic bust of Beethoven
  • creating full-length transcripts of video or audio content for users with disabilities that present challenges for auditory comprehension
    (I should add that I’ve heard quite a few questions about captioning and transcripts for educational purposes – that is, people have been unsure whether it is legal to add captions or create transcripts for materials used in non-profit classroom contexts. The Google Books decision suggests it may be legal to do so even in commercial or non-classroom contexts.)
  • scanning visual artworks in order to provide magnified copies for users with visual disabilities
  • using 3D scanners and 3D printers to create manipulable reproductions of artwork for users who are benefitted by tactile interaction with the works
  • digitizing all manner of inputs for tactile displays

Here’s hoping that fair use will continue to evolve with consideration for players beyond those directly party to a lawsuit – it could go a long way to defining and/or reducing the risks for some very socially beneficial users.

Image credits:

1. Betacam SP Scanning Station CC-BY Carl Malamud

2. 3D Printed Beethoven CC-BY Creative Tools


Google Books and the Social (Justice) Contract

In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.


Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.


The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.


Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.



Google Books and Author’s Rights

I agree with James Grimmelmann that the Google Books decision is a bit anticlimactic (although the appeal has the potential to add suspense by bringing the case back from the dead). After last October’s decision in Authors Guild v. Hathitrust, the only question really was whether Judge Chin would distinguish HathiTrust on the grounds that the defendants there were nonprofit institutions of higher education, while the defendant here was a commercial entity. To be sure, Judge Chin was not bound by Judge Baer’s analysis that HathiTrust’s use was transformative and did not in any way harm the market for the works at issue,  but these holdings were so consistent with precedent in the Second and Ninth Circuit that it was hard to imagine that Judge Chin would disagree with them. That left the commercial/non-commercial distinction, which has become far less significant in recent years in cases involving transformative uses.

Both judges’ recognition of the enormous social utility of creating a searchable index of books, and the absence of harm to authors caused by such an index (to the contrary, the index benefits authors by making their works more discoverable), highlights the mystery at the heart of these cases: What is the Authors Guild fighting for? Why did it not settle last year, when the publishers dropped their suit against Google? Why did it continue to pursue its litigation against HathiTrust after HathiTrust abandoned its orphan works project?

For some Authors Guild members, it might be about the money. They may believe that there is a pot of gold at the end of the Google rainbow. If the Internet could make instant millionaires (if not billionaires) out of all these kids who express themselves through Internet acronyms, emoticons, and 140 character tweets, then surely authors who spend years writing finely crafted books deserve a share of that fortune.

For others, it seems to be a matter of principle. But exactly what principle? Apparently, that no one should use their works without their permission. While they may agree with fair use in the abstract, they oppose it as applied to their works. The fact that the use is socially beneficial and does not harm them economically is irrelevant. I would amend James’s “three c” formulation with a fourth c: creators should have complete control over copies.

The Authors Guild’s belief in complete control is based more on the Continental “author’s rights” (droit d’auteur) tradition than on the Anglo-American utilitarian tradition. In the author’s rights approach, copyright springs not from statutes but from natural law. The relationship between the author and his work is intimate and indivisible. By contrast, in the Anglo-American system, copyright is not a response to natural law, but rather is a matter of legislative choice directed at incentivizing the creation of works for the benefit of society.  The Anglo-American utilitarian approach in theory provides only as much protection as is necessary to encourage creative activity, while the author’s rights approach provides more robust protections of both economic rights and moral rights such as the right of attribution and integrity.  Historically, the difference between the two approaches translated into longer copyright terms and narrower exceptions in author’s rights jurisdictions.

However, in response to lobbying by rights-holders, Congress has enacted certain features of author’s rights systems — for example, the ever-increasing copyright term. The first U.S. copyright act provided a term of 14 years, renewable for another 14 years, for a total of 28 years. Now, the copyright term matches the European Union’s term of life of the author plus 70 years.

Efforts are underway to import other author’s rights features. The U.S. Copyright Office just released a report recommending that Congress consider adoption of a resale royalty (droit de suite) for visual artists. Under this framework, a visual artist would receive a percentage of the amount paid for a work each time it was resold by a third party.  A resale royalty is in effect a tax on the sale of copyright products and is directly contrary to the long-established first sale doctrine.

The complete control over copyrighted works sought by the Authors Guild and reflected by proposals such a resale royalty are inconsistent with the public interest purpose of our copyright system. Fortunately, Judge Chin, and Judge Baer before him, recognized that the objective of copyright is not to enrich rights-holders, but “to advance the progress of the arts and sciences.”



Of Google, Geese and Librarians

My initial thoughts about the Google Books decision were posted last month on the Scholarly Communications @ Duke blog and are available here, so I won’t repeat any of that.  I do think readers of this site might also be interested in a post by IP attorney and former professor of social psychology Zick Rubin, in which he discusses the possible motivation of the Authors Guild in deciding to appeal the decision.

In this space, however, I want to build on the comments that James and Ariel have made, and to turn the attention for a bit to the impact of the GBS decision on libraries and the kind of digitization academic libraries are most often involved in.

The main point I want to take from James is that we are living through a slow but significant shift in fair use jurisprudence that is adapting that odd doctrine, which is statutory yet remains common law in its ability to change and evolve, to the era of online communication and mass digitization.  From Ariel I am struck by the assertion that even though Google is a player unlike any other in the ecosystem, what is sauce for the Google goose is also sauce for the library gander — that is, that this shift in fair use jurisprudence has potential consequences and offers opportunities for academic libraries as much as it does for giant Internet search engines. Read More


Fair Use for the Google Goose; Fair Use for the Book Gander

This post was originally posted on Ariel Katz’s blog.

While many in the library, research, and technology communities have hailed Google’s recent fair use victory, some have expressed skepticism about who is the real beneficiary of the ruling. Some librarians have wondered whether their enthusiasm about the ruling should not “be tempered by the understanding that Google is not the do-no-evil corporation it once represented itself as being?Read More


The Evolving Law of Fair Use

The Google Books case would make a terrible movie. It started promisingly enough, with a cold open on Google’s ambitious book scanning project, and quickly established its central conflict, between Google and irate copyright holders. Then the plot took a breathtaking twist when it was revealed that Google and the authors and publishers had secretly been negotiating a settlement. But after the tense second act culminated in the brilliantly argued fairness hearing, the plot just tailed off. Sure, Judge Chin rejected the settlement, the Authors Guild brought Google’s library partners into the litigation, the publishers settled, and two judges found that the book scanning was fair use—but all of it had the repetitive feeling of a Bruckheimer-buster. Haven’t I seen these explosions somewhere else?

Times have changed, and technology has changed, and copyright law has changed, as well. Judge Chin’s decision bringing to a close (for now) the main Google Books litigation didn’t so much make new law as draw an emphatic underline under existing doctrines. Copyright law has taken account of digitization and search technology. They are accepted parts of the legal landscape now, and future decisions are not likely to call their legality into serious question.

Take the holding that search engines make a transformative use of the content they index. The Kelly, Field cases said the same—but it was possible to maintain they were other than settled law. That’s a Ninth Circuit doctrine. That’s a Web-only doctrine. That’s implied license in disguise. And so on—but no more. Search engine fair use is broadly established, to the point that even judges who deny its application on the facts before them accept the broader principle.

Or take the holding that there is no discernable market for licensing short snippets to illustrate. Judge Chin, like Judge Baer before him in the HathiTrust case against Google’s library partners, viewed Google Book Search as a pure pie-higher-er. The gains from making books searchable do not come out of the pockets of authors. Indeed, by making it easier for readers to find books, book search makes it easier for authors to find readers. Judges have come to accept the idea that these long-tailed digital geese lay golden eggs only so long as they live; cut them up in search of licensing fees and there is nothing inside.

Judge Chin and Judge Baer are also attuned to the public benefits of technological tools; their opinions have no difficulty explaining how digitization promotes the fundamental copyright goals of access, learning, and future creativity. This functionalist approach to fair use is part of the same trend that has brought us Cariou v. Prince and A.V. v. iParadigms.The Authors Guild’s entire litigation position has been based around three “C”s: that creators should have control over copies. But this formalism led it down the disastrous path of focusing heavily on the number of copies of each book made by Google and retained by the libraries in their data centers, and into pressing hard the obvious loser of an argument that libraries’ section 108 rights are an absolute limit on fair use. Such arguments are simply not persuasive to judges who are sensitive to the purposes of copyright and of fair use.

This is not the end of the Google Books movie. Both cases are still on appeal. And certainly the trend in current copyright cases is not wholly in the direction of technologists’ and readers’ rights. But this part of the copyright landscape — mass digitization and fair use — seems to have shifted fairly definitively. Not all at once in an earthquake, but slowly, almost geologically on the scale of Internet time. Now that’s very gradual change we can believe in.