After eleven years of litigation, Google declared legal victory Monday in its quest to scan and digitize the world's books.
The U.S. Supreme Court upheld a federal court's ruling in favor of Google in the long drawn-out fight over Google Books, which now includes more than 20 million authors' works. The court made its decision by declining an appeal from the Author's Guild, which has been fighting for years against Google's digitizing books without compensating their authors.
The case has massive repercussions for copyright and the definition of "fair use" in the digital age. The case hinged on whether or not Google’s turning the books into a searchable database constituted a ‘transformative use’ of the material it was copying, and thus did not infringe on author’s copyrights.
The Supreme Court has now agreed that creating a kind of online card catalog which displays only limited snippets of books in search results, meets the definition of transformative use. It's a decision that could pave the way for many more digital projects in the same vein.
This is a victory for the public domain, said Parker Higgins of the Electronic Frontier Foundation (EFF), which has long been an ally on the side of Fair Use. “The upshot is this is great news!” said Higgins by email.
“The constitution gives Congress the power to make copyright laws for the express purpose of promoting the progress of science and useful arts. It's really clear to everybody but the Authors Guild that being able to find relevant books is important for that progress,” Higgins explained.
The Authors’ Guild did not see the project in the same light. It said Google Books reduces authors' control over their digital display and potentially cost them lost revenue in licensing fees and sales. Earlier iterations of Google Books served ads alongside its search results, which was a clear revenue stream for Google and one it was not sharing with the rights holders—whose permissions it hadn’t sought before it began scanning books.
In some, but not all, cases, the books were out of print or orphaned, but there were also millions of books still in copyright. In the tradition of Beg forgiveness, not permission, Google went not to publishers but to libraries to begin its scanning project, avoiding seeking rights holders' permission from the beginning.
“The company could have sought permission first, but that would've limited the scope of the project,” says Higgins. “Just think about ensuring you have permission from all the relevant parties for every single book — and frankly would've been bad for the public interest.”
Previous compromises between the parties included Google having to remove those ads and to include links to purchase books, were they available to buy. Google has consistently argued that its building a searchable database of books has made authors more visible, and so could only increase their sales through this exposure. Authors have argued in response that they should be able to retain the rights to how their works are displayed, in any format, digital or otherwise, and further that readers being able to search quickly for what they are looking for within a given title would decrease their incentive to buy a copy. On both sides it was keenly felt that current copyright law was inadequate for judging these decisions.
This case has highlighted the unique strains that digital markets are placing on legacy media and the tension of the public domain clashing with everyone’s access to information. Copyright has traditionally existed as a way to ensure that creators can make a living from their labors, but it has always come with a set of limited uses to ensure the public domain remains robust. How those laws, all drafted long before the web existed, would be stretched to accommodate uses that were not foreseen at the time has been the focus of intense debate over the last eleven years of the Google Books case. Google is one of few companies with the resources available to mount legal proceedings of this length, which had the company lost, could have resulted in its paying out enormous sums in licensing fees to rights holders.
Keith Kupferschmid, CEO of the Copyright Alliance, expressed disappointment in the decision in a post on the Alliance website. In his view, the Supreme Court case was a missed opportunity as the Second Circuit decision upheld by the Court doesn't provide a clear path forward for navigating these complex new copyright waters. “Courts need another tool in the toolbox – give them a new test – one that more effectively addresses the competing interests of the parties and the goals underlying the Copyright Act,” he wrote.
In upholding the Second Circuit decision, the Supreme Court has signaled that this is the end of the road for the long and costly case. Whether this will ultimately serve the interests of the reading public, the authors who create those works or deep-pocketed tech companies whose products are built on serving content created by others, is far from clear. However it shakes out, this is the way forward now, and how to reconcile those often competing interests will remain a complicated matter of law.
Elmo is a writer with Real Future.