Google Wins Book Scanning Case - InformationWeek

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Google Wins Book Scanning Case

Authors Guild's claim of copyright infringement gets shot down in a surprise ruling.

Google won a major legal victory in New York City on Thursday when Judge Denny Chin ruled that the company's book scanning qualifies as fair use under copyright law.

"This has been a long road and we are absolutely delighted with today’s judgement," a Google spokesperson said in an email statement. "As we have long said Google Books is in compliance with copyright law and acts like a card catalog for the digital age giving users the ability to find books to buy or borrow."

Google began scanning books in 2004 to make texts accessible through search queries. It did so without seeking permission from authors. The following year, The Authors Guild and The Association of American Publishers filed separate copyright infringement claims against Google.

[ What else is Google up to? Read Google Brings Portable Native Client To Chrome. ]

The case wasn't going well for Google. The company tried to settle the claims in 2008 and then again in 2010, at which point the U.S. Department of Justice filed an objection in the case brought by The Authors Guild, saying the terms didn't adequately address the antitrust and copyright issues raised in the litigation.

In 2011, Judge Chin rejected Google's proposed settlement, stating in his ruling that the settlement,"would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."

Last year, the momentum changed. The Association of American Publishers settled its lawsuit against Google. But the Authors Guild claim continued. Judge Chin denied Google's motion to dismiss that claim and granted The Authors Guild's motion for class certification. Google appealed the decision and the Second Circuit Court of Appeals vacated Chin's ruling and directed him to consider the question of fair use before taking The Authors Guild's claim to the class action phase.

On Thursday, Judge Chin sided with Google. "In my view, Google Books provides significant public benefits," he wrote. "It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders."

The Authors Guild sees things differently. Paul Aiken, executive director of the Authors Guild, said in an email statement that his organization disagrees, is disappointed with the court's decision, and plans to appeal.

"This case presents a fundamental challenge to copyright that merits review by a higher court," Aiken said. "Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense."

Matt Schruers, VP of law and policy at the Computer & Communications Industry Association, a technology industry organization that counts Google as a member and filed briefs in support of Google's position, hailed the ruling as "a vindication for transformative technologies online."

Paul Alan Levy, an attorney with Public Citizen, noted in a blog post that the ruling will benefit the public more than the original proposed settlement. The settlement terms would only have governed Google's conduct. The fair use ruling frees other companies and organizations to pursue similar initiatives.

To date, Google has done well in major corporate copyright cases. In addition to its victory over the Authors Guild, Google has prevailed in claims brought by Oracle and Viacom. Appeals are pending in each of these cases, however.

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Thomas Claburn
Thomas Claburn,
User Rank: Author
11/18/2013 | 1:12:39 PM
Re: Muddling through...
As an author as well as a reporter, I don't feel that digital book scanning rights represent a "revenue opportunity." The revenue opportunity is selling one's work, not interfering with other uses that don't really affect the market for one's work.
William Terdoslavich
William Terdoslavich,
User Rank: Author
11/15/2013 | 6:57:09 PM
Muddling through...
Digital publishing has put authors and readers on the horns of some painful dilemnas. 

We have about 500 years of experience handling physical printed books. We've evolved a network of rules and laws governing pricing, sale, author royalties, righs ownership and copyright. Now we are trying to retrofit these concepts into digital publishing. This is going about as smoothly as jamming a square peg into a round hole, and case law is not exactly clear on how to chip away at the rough edges. 

Physical books cease generating any revenue for the publisher or the author after the first sale. After that, the book can be lent out, resold as used, copied partially for fair academic use or given away and none of these activities generate any additional revenue for anyone.

Digital rights can change the nature of the book from something we hold, own and read into a body of digital text that is "leased" to the reader. Every time someone else wants to look at the book, the right to look at it can be sold again. The price can be changed to suit the circumstances. 

The Google decision robs publishers and authors of that additional revenue opportunity. But it will be good for readers, as any book you look for will be in "digital print", even if it has ceased to exist in the used book marketplace. 
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