Google Books: Scanning is Fair Use per Judge Denny Chin

Judge Denny Chin granted Google's motion for summary judgement today, dismissing the lawsuit by the Authors' Guild against their Google Books project.  Here is the ruling on Scribd.  Judge Chin found that Google's scanning and adding a search function to the print books was "highly transformative" lifting the Google Book Project out of the strictures of copyright into Fair Use.

Judge Chin referred to a number of amicus briefs filed by various library and scholarly groups to recognize the many benefits generated by the book and library projects in his opinion.  From preservation to data mining to increasing access, the Google projects are recognized as providing huge new benefits that were previously not reached by either print or e-book presence.

Judge Chin assumes that the plaintiff has established a prima facie case that Google has violated copyright through the scanning projects.  But because he finds that it falls under Fair Use doctrine


(§107 of  the Copyright Act), the case is dismissed. Because Google Books uses the words in the books for a different purpose - creating snippets for readers to sample, for instance, or to search with , or for datamining, Judge Chin finds Googles use "highly transformative."

Words in books are being used in a way they have not been used before. Google Books as created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information.

     Google Books does not supersede or supplant booksbecause it is not a tool to be used to read books. Instead, it"adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.

(from Chin,  Author's Guild, et al., v. Google, 05 Civ. 8136 (S.D. N.Y, Nov. 14, 2013) , at pp. 20 - 21). 
 Image is Judge Denny Chin, taken at the time of his confirmation as a federal judge.

Copyright and Fair Use at Georgia State

Link to this excellent blog note by Kevin Smith at Duke about the ruling in the Georgia State fair use litigation. (Cambridge Univ. Press, et al. v. Mark Becker as President of Georgia State Univ., et al., in the Federal District Court for the N. Dist. of Georgia, Atlanta Div., opinion filed May 11, 2012) Tip of the OOTJ hat to our fabulous colleague, Ron Wheeler at San Francisco U.

The thing was, that in a mixed, complex opinion, more than half the claims were either dropped by the publishers or dismissed by the judge, and then, in the stunning finish, the judge awarded the costs and attorney fees to Georgia State!

There are a number of articles by now on the matter:

Chronicle of Higher Education (with the excellent link to the decision).

Library Journal (includes links to earlier articles in the same journal covering the original filing of the case, and the closing arguments in the case, etc., but no links to original documents, sadly).

Inside Higher Education includes a link to Prof. Kevin Smith's blog post as well as one to the Association of American University Presses website in support of the plaintiffs in the case. This includes an excellent section of original documents in the case, most from the plaintiffs, but some from the defendants as well. Excellent link site!

Educause provides a web page with lots of links original documents:
* Document with links to the decision and analysis by 3 scholars (note from Betsy: this sometimes does not show up on my computer; I am not sure if it's a problem with my computer or their link)

* a memorandum summarizing the key rulings in the case and the implications for libraries (again, the PDF does not show up on my computer and I don't know if it's their glitch or mine)

* policy notes from the ARL (I cannot get this link to work today; I hope it works other times!)

* a collection of blog notes from all over about the case, and more (these work!)

The Digital Reader - very handy because it handily recaps the story of the case up til the decision, and provides some nice links out to blogs and a NY Times story that follows the story through the years from the 2008 filing til now.

Experts figure the story may not be over yet. They expect that the publishers may go on to appeal this district court decision. But it was a huge statement for Fair Use Doctrine defenders in an era when there has been such a drumbeat (at least in the lobbyist-influenced legislatures) in favor of the copyright holders. But it's a complex, nuanced and HUGE decision -- 350 pages! The judge was careful and made decisions on an item-by-item basis.

She laid out clear rules for how universities can and cannot use textbook versus non-textbook materials and still fit within fair use guidelines. But she also gave GSU credit for sincerely trying to develop policies that would honor fair use. That undoubtedly saved them!

So, it's not a broad, clear win for one side over the other. But the awarding of the attorney fees was a pretty strong statement!

LinkRights - a possible alternative to newspaper paywalls

The Chronicle of Higher Education has an article from August 8, 2010, by Dalton Conley, Dean of Social Sciences at NYU. "Linkrights and Wrongs," proposes something that Jim Milles discussed here some years ago as a model to compensate the originator of ideas and words on the Internet fairly. Linkrights would share with the creator of a website, any revenue generated by ads on websites that aggregate or link to the material. So that search engines, aggregator sites, and any blogs that run ads would share whatever money they generate from ads at the page where the link exists to the page, or material aggregated from this other site. When a reader clicks on the link to read the original material, it would send a share of the ad revenue to the author of the linked webpage.

This avoids the tragic flaw of the current model, paywalls, being explored by several newspapers, of trying to charge their readers. Users will not pay for the material. There are too many other free sites, and the users have too much experience of free material to accept charges unless there is a real value added, as with many databases. Readers continue to access the material free of charge. The revenue continues to be generated by the advertisements. And the distribution turns out to be easy on the Web. This is something Internet browsers are very good at doing. They can easily spot a visitor to a website and Ka-ching make a little note that this page rings up a micro-payment for this http site and that http site on the page. The bookkeeping is taken care of automatically, in the same way that it is done now, with the ads. The original payment is split off, among the various pages to which the reader links as she reads, giving a fair share to all the authors, or photographers or artists whose work contributed to bringing the reader to the page which brought the viewer to see the ads.

Newspapers would be able to receive money for all the times websites link to their pages for either the stories or photographs, if there are ads at the websites. They would also be responsible for paying a share of their ad revenue for any links they use on their pages. Websites like Out of the Jungle, which have no ads would not generate any revenue to share (at least as far as I understand the program). I would also guess that any links to our little website would be so small as to amount to such a small payment as to be not worth cutting a check. But Conley's point is that scholars' sites would not be impeded. He has a nice wind-up:

While the numbers may need to be tweaked, the goal of linkrights is a return to market balance: You get what you pay for, and you pay for what you get. The establishment of linkright law would do much to restore order to the ether universe. Hey, it may even save old-media dinosaurs like this one, which provide a public service with their expensive reporting.

I, too, would grieve for the loss of newspapers, both the Chronicle of Higher Education, and such as the Boston Globe or The New York Times, or even smaller ones such as the St. Louis Post Dispatch or the Lexington Herald Leader. At different points in my life, all of these (but the NY Times) have been my home town paper. I have been a subscriber and read them every day. They serve important roles in their communities, not only with news and local investigative reporting, but as a kind of community glue. It would be a terrible shame to lose that.