ILNews

Judge finds Google's book project 'transformative'

Back to TopCommentsE-mailPrintBookmark and Share
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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT