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Google Books Case Dismissed On Fair Use Grounds
NewYorkCountryLawyer writes "In a case of major importance, the long simmering battle between the Authors Guild and Google has reached its climax, with the court granting Google's motion for summary judgment, dismissing the case, on fair use grounds. In his 30-page decision (PDF), Judge Denny Chin — who has been a District Court Judge throughout most of the life of the case but is now a Circuit Court Judge — reasoned that, although Google's own motive for its "Library Project" (which scans books from libraries without the copyright owners' permission and makes the material publicly available for search), is commercial profit, the project itself serves significant educational purposes, and actually enhances, rather than detracts from, the value of the works, since it helps promote sales of the works. Judge Chin also felt that it was impossible to use Google's scanned material, either for making full copies, or for reading the books, so that it did not compete with the books themselves."
One of the four factors used in the copyright statute to determine whether or not a use is fair use is: "The amount and substantiality of the portion used in relation to the copyrighted work as a whole"
The idea here is to protect stuff like a critic quoting a bits of a book/movie in their discussion of a piece without violating the copyright of that book/movie. If it weren't for the 'snippet' view that prevents easy access to 100% of each scanned book, that factor would have weighed against google here, not for them. While one can only speculate whether that would have been enough to change the outcome, it is a certainty --the judge explicitly describes how, if you're interested-- that google's presentation of less than 100% of the scanned works helped secure this decision.
Traditionally you could. If you owned a book or a tape or a record, you traditionally could make copies of it for your own personal use without needing permission. Collecting your favorite songs onto a single tape, or copying your records onto tape to listen to them in the car, or making copies so the originals wouldn't get worn, were all considered perfectly OK things to do as long as if you sold the original those copies either went to the buyer or got destroyed. It's only been very recently that copyright holders have been trying to claim that you can't do any of that.
> I don't mind people who did both processes getting a fair return but we need to decide what a fair return is.
It's 9.8%. Over the long term, they'll average 9.8% per year and there's nothing we can do to change that.
Suppose for a moment that there was a very high return. Let's say 50%.
Microsoft and their Bing divison, along with Amazon and others would be watching that and thinking:
We have $50 million dollars to spend on our next project.
We can either spend that on developing a game console, with an expected return of 2%, or
on digitizing books, with a return of 50%.
Fire up the digitizer!
People generally invest in the type of projects that are getting the best returns. So due to the 50% return, you'd have Google, Microsoft, and Amazon all offering different versions of the service. Maybe Microsoft would have no ads, but it would only work in IE11 on Windows 8.1.
Amazon's would be similar to Google, but with fewer, more obtrusive ads for full books that float over the digital pages.
With two competitors, Google's return would decrease. Specifically, new entrants keep coming in with different (better, cheaper, etc.) versions as long as the return is higher than other projects. It turns out that "other projects" return 9.8%, on average. So anything with a risk-adjusted return higher than 9.8% draws competitors.
If money goes IN to lines of business where it'll make more than 9.8%, where does it come FROM? From shutting down (or foregoing) operations that make less, of course. Any business with a risk-adjusted return less than 9.8% has some providers leave the market for greener pastures.
With the competitors close, their market share goes to the remaining competitors, so the remaining people get increased returns. Specifically, competitors keep leaving and the return keeps increasing until the return is as good as other options - about 9.8%.
So that's what you end up with - in the long term, any industry in the US has a risk-adjusted return of about 9.8%. Some, like oil or farming, are subject to high volatility - good years and bad years. Exxon for example is affected by oil prices, so it goes up and down. Exxon averaged 11.62% over the last 10 years, 7.86% over the last 15 years - everything swings up and down around that 9.8% mark.
Even if you think that Google is Damien's evil brother, this is the right damn decision.
Agreed, and reading from the full text of the decision, its hard to see what the Authors Guild is all about.
You can't get the full text of a copyrighted work from google, no matter how hard you try. You get
snippets, not complete pages, and not snippets from all the pages.
Further, most of the Author's guild whining was all about the fact that Google is a for profit company.
Yet the decision clearly considers this:
Here, Google does not sell the scans it has
made of books for Google Books; it does not sell the snippets
that it displays; and it does not run ads on the About the Book
pages that contain snippets. It does not engage in the direct
commercialization of copyrighted works.
Google does, of course, benefit commercially in the sense that
users are drawn to the Google websites by the ability to search
Google Books. While this is a consideration to be acknowledged
in weighing all the factors, even assuming Google's principal
motivation is profit, the fact is that Google Books serves
several important educational purposes.
Sig Battery depleted. Reverting to safe mode.