All's Fair in Copying the World's Books -- Mark Fischer

Wouldnamp8217t it be fantastic to have all of the worldamp8217s literature scanned and available for search in text online Well something along those lines is already hereGoogleamp8217s Book Project or amp8220Google Booksamp8221 as it has come to be called is one of the enterprising tech giantamp8217s ambitious ventures Google Books itself consists of two smaller components First the Partner Program in which Google hosts books on its website licensed from publishers with whom it has entered into agreements Second the Library Project via which Google hosts scanned books from various libraries and collections without obtaining permission of the respective authors or publishers Since beginning in 2004 Google has scanned over twenty million books as part of the Library Project The goal is to make the text fully searchable through Googleamp8217s search engineYou may be asking yourself what is the problem with such a highly useful service The issue is one of copyright law Google did not obtain permission from authors or publishers before scanning their works Among Googleamp8217s justifications is that obtaining permission would be impractical as some of the books are amp8220orphanedamp8221 works whose rights holder could not be identified But many books are well cared for by their parents As a result the Library Project earned the ire of the Authors Guild which filed a class action lawsuit against Google on behalf of authors of books Google had scanned and made searchable without their permissionDoes the social benefit of having much of the worldamp8217s literature scanned and copied by Google for use in online searching outweigh the rights of copyright owners to say amp8220yesamp8221 or amp8220noamp8221 to that endeavor Judge Denny Chin of the Second Circuit Court of Appeals recently said Yes in effect social benefit trumps strict copyright control by authors and publishersThe case has been on an eight year journey with Judge Chin travelling with him from his original seat in the Southern District of New York to his current position on the Second Circuit Court of Appeals On an appeal of his district court decision on class certification the Second Circuit remanded the case to determine whether the Project constituted fair use of copyrighted materials Between the filing and decision of this appeal Judge Chin had been elevated to the Second Circuit Court of AppealsIn a sense the long period of consideration gave Google an opportunity to embed Google Books into our lives An adverse decision to Google would have been unpopularFair use is an affirmative defense that an infringing party can raise in which it argues that although it copied a work its use of the copied material fulfills the Constitutional purpose of copyright in that it contributes to the advancement of science or the arts The concept behind fair use is that creativity often requires the use of othersamp8217 works for the expression of ideasCertain types of copying have often been held to be fair use such as criticism commentary news reporting or parody These uses sometimes can be said to be transformative because they use the underlying work for a different purpose In April 2013 in the case of Prince v Cariou the Second Circuit held that the determination of a useamp8217s transformative value is to be made by examining whether a amp8220reasonable observeramp8221 would think the use is transformative This new standard effectively lowers the bar for transformative use by omitting a need for the new use to comment on the work being copiedWhen a court analyzes copying to determine if it qualifies as fair use the court conducts an analysis of four factors 1 the purpose of the use including whether it is done for commercial gain andor is transformative 2 the nature of the work being copied 3 the amount of the work copied and 4 the potential harm to the original rights holderamp8217s market for the copied workIn his January 2014 opinion Judge Chin addressed each of the four factors before finding that the Library Project constituted fair use I donamp8217t believe itamp8217s an exaggeration to say that Judge Chin was enchanted by the power and utility of Google Books in making these findingsThe first factor looks at the purpose of the use of the original books Although he conceded that the Library Project was commercial in nature amp8211 Google is a forprofit powerhouse he found that this fact was not determinative noting that Google had ceased displaying ads on Library Project pages Judge Chin found that the second factor weighed slightly in Googleamp8217s favor because most of the works being copied were nonfiction which generally does not receive as much protection as fiction Although he found that the third factor weighed slightly against Google Judge Chin seemingly minimized it by stating that in order for Google to carry out the purpose of the Library Project it would necessarily need to copy entire booksThe fourth factor inquiry includes analyzing if the secondary work supersedes the copied work or if it has a significant negative impact on the potential market for the copied work fair use can be less likely to be found In this inquiry thereamp8217s a need to talk about facts Here Judge Chin held that the fourth factor weighed in favor of Google He stated that if anything the rights holders of the copied works would gain improved markets through the Library Project as it would increase awareness of long forgotten works and would make the works easier for consumers to find But to copyright owners isnamp8217t this reasoning a little like the scout helping an elderly person across the road who hits the scout with a cane If the copyright holders wanted the help they could have asked Google to do so Although Google scanned complete books Judge Chin found that measures Google had taken to limit the amount of each book that could be read in search results made it very difficult to piece together the entire book to read and thus to cause market harmJudge Chin found that the Library Project was transformative but not for the reasons one might first guess Instead of focusing on the preservation aspect of Google Books he focused his analysis to its use as a research tool stating that it was invaluable for scholarly research Over the Library Projectamp8217s nearly tenyear existence researchers had come to rely on the Library Projectamp8217s fully searchable text to improve their location of works even if just for citationJudge Chin also discussed at great length the opportunity that Google Books offers for linguistic and historical researchers Having millions of books in fully searchable form it is argued would allow researchers to study how language and grammar have changed over time and for historians to better know when certain terms or ideas first came to prominence As Judge Chin noted even his own law clerks relied on using Google Books in their research for him But users like you and me and the judgeamp8217s law clerks access only search results not full text So the duration of the case played into Googleamp8217s favor If shut down as infringing the Library Project now represented a loss of an entitlement Researchers had come to rely on the Library Project After nearly a decade of existence evidence of scholarly reliance on the Project could be found pretty much all aroundIn comparison to the Google decision is Judge Chinamp8217s procopyright protection opinion in WNET v Aereo Inc another infringement case concerning the copying of works through new technology There he issued a strong dissent to the Second Circuit panelamp8217s finding that Aereoamp8217s television relay and recording service infringed broadcastersamp8217 rightsWhat factors could affect the legality of the Library Project under copyright in the future What if Google changes the structure of the Project by adding advertisements Google is essentially a class of one a unique case Is Google Books a public utility or another copyright userA challenge of the case is that it may set up a kind of broad de facto license for use of copyrighted content without authorization In general other fair use cases have focused on specific uses such as use of a film clip in a TV show the use of photographs in a collage a quotation in a book or the use of a song in a motion picture Google Books on the other hand is a vast ongoing endeavor that will change and evolve The fact specific nature of a typical fair use inquiry might have been given a back seatWeamp8217ll hear much more about this case in the courts and perhaps even in the next revision of the Copyright Act Itamp8217s a very big decision The story may not be over as the Authors Guild has already announced its intent to appeal In the meantime like many of us Iamp8217m going to search Google to check out a question or twoMark A Fischer is a partner at Duane Morris LLP based in Boston and New York City His law practice is focused on solving problems and making deals for innovative companies institutions and individuals Mr Fischeramp8217s clients are typically in the creative industries such as new media social networking music interactive entertainment information technology software television publishing and toys He may be contacted at mafischerduanemorriscomRead all Mark39s MediaBizBloggers commentaries at Mark A FischerCheck us out on Facebook at MediaBizBloggerscomFollow our Twitter updates MediaBizBloggerThe opinions and points of view expressed in this commentary are exclusively the views of the author and do not necessarily represent the views of MediaBizBloggerscom management or associated bloggers MediaBizBloggers is an open thought leadership platform and readers may share their comments and opinions in response to all commentaries

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