On November 14, 2013, the judgment in The Authors Guild, Inc. v. Google Inc. the Google Books project was deemed absolutely legal due to the fair use doctrine being applied to it. This precedent is extremely important for at least two reasons. Firstly, it opens the way for further large-scale work on the digitization of books, for the creation of an open and generally accessible, within certain limits, repository of the creative heritage of mankind. Importantly, the judge did not find in such actions any economic threats to the right holders, to which they usually refer. On the contrary, I saw in the project a serious potential for expanding the audience and increasing the income of authors. And in general, as will be shown below, he recognized the Google initiative as extremely beneficial for the whole society.
Secondly, the court decision in this case once again proves the undeniable benefit of formulating exceptions and limitations from copyright not in the form of a narrow closed list, but by fixing a general rule applicable in all new situations. As US jurisprudence proves, this approach allows judges to expand, within reasonable limits, society’s access to knowledge and cultural benefits, which is critical in the modern information age. Many representatives of the legal sciences still regret that the three-step test, proposed in the development of the Berne Convention as an analogue of the Anglo-American doctrine of fair use, has turned into its opposite, absolutely useless (after all, it is now aimed at narrowing the already narrow exceptions to intellectual property ).
In the previous article, we examined in detail the situation around the Google Books Search project. Therefore, here we present only the most interesting provisions of the new court decision.
First of all, it is interesting that the judge considered it important to list the benefits of the project:
1) The project is a new efficient way to find books for librarians, readers and researchers. A unique research tool that allows you to search by keywords among many books, perform inter-library searches (to obtain the original book), and also maintain a citation record system. The project became so important that it was included in the information literacy education program for students of all levels.
2) In addition to promoting mainstream scientific work, the Google Books project is helping to conduct new types of research, such as text and data mining (so-called text / data mining). It became possible to study the frequency of occurrence of certain words, syntactic images and thematic markers in a huge array of texts in order to see changes in literary styles over time, to study the development of lexicography, the evolution of grammar, collective memory, the use of technology, bursts of popularity, manifestations of censorship, etc.
3) The project expands access to books. In particular, it is easier for people with disabilities to use them on their devices, which make it easier to understand. It is more convenient for remote and small libraries to learn about the location and content of new books in the course of making decisions whether to buy books for their own collection or purchase through interlibrary loan.
4) The project helps to save books and give them a new life. Old, out-of-print books, instead of being buried among library rubble, are scanned and returned to readers. At least searchable. And then readers who learn about their existence can find the original.
5) Finally, Google Books provides serious assistance to the authors and publishers themselves. When a user finds a book of interest to him, then on the page “About the book” he finds information about where it can be bought (in particular, in various online stores) or borrowed from the library. Thus, the project expands the audience of potential buyers and creates new sources of income.
Google’s protection was based on proving the legitimacy of its actions, as committed in the framework of fair use (fair use).
To do this, it was necessary to assess the situation from four sides, taking into account the so-called four factors of the fair use doctrine.
1) Purpose and nature of use.
The use of works in the Google Books project is significantly transformative. “Google Books digitizes books and transforms their content text into a general dictionary index that helps readers, scholars, researchers and more find books. Google Books has become an essential tool for libraries, library staff, and those who organize citations of works, making it easier to identify and search for books. Improving search by displaying excerpts is a transformative use of the book’s text.” The judge bases his case on earlier decisions in Kelly v. Arriba Soft Corp. (2003), Perfect 10 v. Amazon.com (2007) and (Bill Graham Archives v. Dorling Kindersley Ltd., 2006). We have already analyzed them in the next article. He concludes: “Displaying excerpts in search is similar to displaying photo thumbnails in search results or thumbnails of posters as references to historical events, because excerpts help users locate books and understand how interesting they are. Thus, Google Books uses words for a different purpose – as pointers that direct users to a large selection of books.
According to the judge, the use must be recognized as transformative also because “the text of the book is transformed into a set of data suitable for conducting traditional and new types of research, such as data/text mining. Words in books are used in a completely new way, not like before. The project made it possible to find important information not only in the content of the texts, but also in the frequency and trends in the use of words.”
Google Books does not replace or replace books because it is not a book reader. Instead, it brings new value to the book, allows you to create new information, insights and meanings.
The fact that Google is a commercial organization and seeks to make a profit does not disprove the transformative nature of book digitization. The Company does not sell digital copies of books or excerpts, does not place advertisements on excerpt pages, and does not directly commercialize protected works. Naturally, she benefits economically from the fact that the ability to search through the text of books attracts more visitors to her site. But still, the educational goals of the project itself are much more important than the indirect economic benefits received by the participants. In some previous cases, judges have also found that the commercial elements of an activity must be weighed in conjunction with other circumstances and do not take precedence.
Therefore, the first factor of the doctrine speaks in favor of Google Books.
2) The nature of protected works.
Judicial practice usually does not attach decisive importance to the second factor. Nevertheless, here Judge Chin found something to say in favor of Google. He emphasized that, in most cases, fiction is protected more strictly than non-fiction (because of the higher level of originality in the former case, as noted in Stewart v. Abend, 1990). However, the vast majority of books in the Google Books project were non-fiction (93%). Further, all books have been previously published and are available to the public. And the courts recognize that in this case the doctrine of fair use can be applied more widely than in relation to unpublished works (Africa Inst., Inc. v. Palmer, 1992).
3) Volume and significance of borrowing.
Google scanned the full text of the works and copied them verbatim. On the other hand, courts in a number of cases also recognize such a volume of borrowing as bona fide. For example, in the case of Sony Corp. of America v. Universal City Studios Inc. (1984) and Bill Graham Archives v. Dorling Kindersley Ltd. (2006). Full use of books is critical to the operation of a project offering full text search. Significantly, Google limits the amount of text displayed for a search query. However, in fairness, the judge found that, with regard to the third factor, the circumstances were “slightly against” recognition of fair use.
4) Impact on potential market or value.
The judge indicated that he could not accept any of the arguments of the plaintiffs (that the project would negatively affect their market, that digital copies would replace paper books, that users would be able to access the full text by making multiple searches). The search engine does not sell scanned copies, and they do not replace books. Libraries receiving full digital copies already own the paper books they provided for scanning. Also, in the opinion of the judge, it is unlikely that anyone would waste time and energy on countless search queries in the hope of collecting enough passages to compile an entire book. This is not possible, because some part of the book is intentionally not displayed by Google, so 10% of the pages will still remain inaccessible. In addition, to conduct such a search, you must have a copy of the book.
And at the same time, the judge continued, a conscientious researcher will notice that Google not only does not interfere with book sales, but promotes it to the benefit of copyright holders. The commercial success of a work depends on the extent to which potential readers are aware of its existence. The Google Books project helps to bring information about books to the public, similar to the display of books in traditional stores. For example, both librarians and their trustees use the system to decide which books to purchase for the fund. Many authors report that any online search, and within the framework of the project in particular, helps readers find their work, thereby increasing the audience. Finally, Google provides handy links to stores where books can be found.
but buy. There is no doubt that in the era of online shopping, Google Books is improving book sales. Therefore, the judge concludes, the fourth factor speaks strongly in favor of fair use.
The general conclusion of the judge: “In my opinion, the Google Books project is of great benefit to society. It promotes the development of the arts and sciences, reasonably respects the rights of authors and other creatives, and does not harm rights holders. It has become an invaluable research tool, allowing students, teachers, librarians, and others to identify and locate books more efficiently. For the first time, he gave scientists the opportunity to conduct full-text searches among millions of works. He preserves and fills with new life books, especially old ones and more reprinted ones, long forgotten in the depths of libraries. It facilitates access to works for people with disabilities, as well as for those who live remotely or are unable to use library services. The project creates a new audience and new sources of income for authors and publishers. Undoubtedly, society as a whole benefits.” In short, despite the fact that Google’s actions bear signs of an offense, they are justified by virtue of the doctrine of fair use.