Judge finds Google's book project 'transformative'

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Indiana Lawyer Focus

Copy a book, make most of its contents available to the public, and you can soon expect to learn about the finer points of infringement.

But, when Internet-giant Google copied more than 20 million books without the authors’ consents and posted a majority of the text online, a federal judge found the effort constituted fair use. Readers heralded the decision as a victory.

mckenna McKenna

Within the legal community, attorneys applaud the ruling as clearly expressing a definition of “transformative” that the Supreme Court of the United States established nearly 30 years ago. Specifically, Circuit Judge Denny Chin, sitting by designation on the U.S. District Court for the Southern District of New York, recently held that Google, through its Google Books project, changed the purpose of the books.

Chin issued his opinion in The Authors Guild, Inc., and Betty Miles, Joseph Goulden and Jim Bouton v. Google, Inc., 1:05-CV-08136, Nov. 14.

“I think Google Books is a good thing for authors,” said Mark McKenna, associate dean at the University of Notre Dame Law School, adding only a very small number of writers have suffered a negative impact from the project. “Especially with academic authors, it would be hard to find anyone upset about Google Books.”

Since 2004, the company has been scanning and making digital copies of entire books as part of its Library Project. Participating libraries can then obtain a digital copy of books from their collections. Google also keeps a digital copy and creates an index of all the scanned works, enabling users to search for a word or phrase and get a list of the most relevant books containing the search term.

Library patrons can be directed to libraries or booksellers who have copies of the work. Also, Google makes available snippets of the text.

In considering the four factors of fair use as set forth in the Copyright Act of 1976, Chin gave the most weight to the “purpose and character of use” factor. He found that Google’s digitization of the text enables researchers to identify and search through books, an innovation which the judge said has transformed the written word.  Google Books is “highly transformative” because it uses the snippets to direct readers to other books. It turns the text into data, allowing readers to analyze and find patterns across millions of books.

This interpretation of “transformative” breaks with the tradition of the courts in finding fair use. Usually the fair-use ruling is given to works that have turned the original creation into something different such as through parody or satire. In this instance, Google did not alter the books but changed the way the books can be used or changed their purpose.

Christopher Brown, partner at Woodard Emhardt Moriarty McNett & Henry LLP, called the opinion “refreshing” because it takes a holistic view. Here, Brown said, the judge felt Google was not trying to make a profit but rather trying to advance the scientific and useful arts. The focus was more on the benefit to society and less on the commercial impact to authors.

Chin’s finding that Google changed how books are used is a “pleasant development” in the definition of “transformative,” McKenna said. The U.S. Supreme Court concluded that using a copy of an original work for a different purpose was transformative in Sony Corporation of American, et al. v. Universal City Studios, Inc., et al., 464 U.S. 417 (1984). But since then, other courts have not been as explicit until now.

While the court found Google’s indexing system to be fair use, Amy Berge, partner at Bingham Greenebaum Doll LLP in Louisville, argued the question that goes unanswered is whether Google infringed by reproducing millions and millions of books. The decision is too broad, she said, and leads to the logical conclusion that anyone can copy any work and make it available.

Moreover, she did not agree with the court’s position that Google did not make the entire work available. Google blacks out only 10 percent of each book. Also researchers, she said, do not typically read the whole book but use parts or sections. This means with Google, the readers can forgo a trip to the library or bookstore and get what they need at their computer. This takes away part of the market value of the books.

Berge noted the judge used his discretion in weighing the factors of fair use and cannot be said to have reached the wrong conclusion. However, the decision imposes a lot of uncertainty and upheaval for people who create.

Stretching copyright

When Brown meets with clients, he explains the two prongs of the copyright law. The first gives exclusive rights to authors and inventors over their works so, ideally, they will have an incentive to create more works. The second establishes fair use to give everybody else the incentive to create the next version of the original work or to move the debate along in some fashion.

“There are plenty of people that don’t appreciate the extent to which there are exceptions to copyright,” Brown said.

Too often, the patent attorney said, authors and inventors believe since they created something they are the only ones who should benefit. But the real basis of copyright law is that everyone benefits by allowing the initial creation to spur other creations.

Despite the confusion, Brown said the copyright law is working even as technology advances beyond what was imagined in 1976. The law has handled new technology in the past and continued to work just fine in the Google Books dispute.

Troy J. Cole, partner at Ice Miller LLP, agreed. The copyright law provides guidance to the courts as to what Congress thought was important. And it has been stretched to cover new technology such as when copyright was extended to software.

However, Berge said the Google case underscores the need for changes to the law. Technology can speed forward so quickly that before the courts can catch up, the advances become ingrained into public use. Then the assertion the infringement benefits the larger society becomes the prevailing concern.

As an example, Berge pointed to the patent infringement lawsuit against BlackBerry in the early 2000s. By that time, the mobile phones were in such wide use that even the federal government claimed taking the technology from BlackBerry would cause the public harm.

Changes to the law need to be made and should be made at the legislative level, Berge said. Google copied carte blanche, so the message to others is work as fast as you can then argue your product is helpful to society. Congress needs to weigh in on the issue, she said.

Google’s gain

Berge acknowledged Google did partner with libraries and educational institutions which have a broader scope of access to copyrighted works. The company’s motives may have been pure and truly seeking to benefit the greater good but, Berge noted, Google is getting a return even though it is offering the books for no charge.

“They get a huge benefit,” she said. “I’m going to search Google since they are the ones with all this information.”

Discerning why Google undertook this project is also intriguing to Cole. It is a savvy company so it might have seen a reward or payoff somewhere, he said. Possibly while the researchers are reviewing the book snippets, Google is watching them.

“You are the product,” Cole said.•


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues