Google Book Chronicles vs. Every Published Author, Part II

(Be sure to read parts one and three.)

The statement from Google:

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.”

Baseball pitcher Jim Bouton wrote a popular book called Ball Four. The book is out of print, but it is available through Google Books. Jim Bouton is a plaintiff in the case against Google Books because the work was used without his permission.

Baseball pitcher Jim Bouton wrote a popular book called Ball Four. The book is out of print, but it is available through Google Books. Jim Bouton is a plaintiff in the case against Google Books because the work was used without his permission.

And from the Author’s Guild:

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.”

Of course, the Author’s Guild plans to appeal the decision, but, for now, it stands.

The judgment was written by U.S. Circuit Court Judge Denny Chin, who has been working with Google and the Author’s Guild on the future of Fair Use as it applies to Google’s insistence upon scanning and posting intellectual property without permission of the copyright holder. (Be sure to read yesterday’s post because it sets the stage for this one.)

This wonderfully cluttered bookshop in Tenby, Wales, UK is precisely the sort of mess that Google Books tries to solve. In the bookstore, there is no search, no apparent organization whatsoever (except those lovely Penguin classics in the spinner rack). On Google Books, every word of every book is part of a searchable database. (Photo by Howard Blumenthal, all rights reserved, do not duplicate or distribute without written permission.)

This wonderfully cluttered bookshop in Tenby, Wales, UK is precisely the sort of mess that Google Books tries to solve. In the bookstore, there is no search, no apparent organization whatsoever (except those lovely Penguin classics in the spinner rack). On Google Books, every word of every book is part of a searchable database. (Photo by Howard Blumenthal, all rights reserved, do not duplicate or distribute without written permission.)

Happily, my book, The Creative Professional, has not been violated by Google, but I will borrow from my own work to review the four “prongs” of Fair Use of copyrighted material:

  •  The first is the character of the use. “The focus of this factor is ‘whether the new work merely supersedes the objects of the original creation… or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.’”
  •  The second is the “nature and copyright status of the plaintiff’s work.” A work that is factual receives more protection than a work that is imaginative. Remarkably, an unpublished work is more likely to be protected than a published work.
  •  The third Fair Use test is the amount of material used. Fair Use protection is more likely to be extended when the percentage of the original work used in the new work is comparatively small.
  •  The fourth judgment is an evaluation of market impact. If the Fair Use was allowed, how might this use impact the market for the copyrighted material? If the copyrighted material is not currently in the market, or if its sales are minor and the use was otherwise fair, this factor may lead to judgment in favor of the defendant who claims that no infringement has occurred. However, if the material is not in the market, and sales are minor, but the use, based on the above three factors, was unfair, then discussion of this fourth factor may not enter in the decision at all. This becomes complex; whether you are defendant or plaintiff, you will want a smart lawyer who is well-schooled in the subtle features of Fair Use and copyright law.

Let’s add it all up:

  • Character of the use. Google’s use adds nothing new, except the ability for anybody to read AND COPY any portion of the copyrighted work without paying for it. I can’t argue that this is not, somehow, “transformative” but I can imagine the use of the term mostly in terms of, say, opening the back of an ATM and transforming bank customers into people who can take money freely, as they wish.
  • Nature and copyright status of the plaintiff’s work. It’s factual, and it’s under copyright for a reason. Copyright provides creative people with protection against unauthorized use. (This is a more complicated idea than one would think, so I’ll leave it to the lawyers to elaborate.)
  • The amount of material used. All of it. Every word. Seriously, is this what we really want as a society?
  • An evaluation of market impact. If we define market impact in two ways: sales of books and promotion of the authors for potentially greater market value, I think I can speak as an expert with regard to my own creative work: sales of books have not been affected in any measurable way, and NOT ONE PERSON has ever told me that they bought the book because they first saw it on Google. And I am no more famous than I was on the day before Google entered my life with their interesting theories and practices about Fair Use.

And let’s have a look at what the judge wrote in his decision:

  • Character of the use. “Google’s use of the copyrighted works is highly transformative…Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books…Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.”…even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes. Accordingly, I conclude that the first factor strongly favors a finding of fair use.
  • Nature and copyright status of the plaintiff’s work. “the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and available to the public. These considerations favor a finding of fair use.” (Nonpublished works are subject to greater protection.)
  • The amount of material used. “Google scans the full text of books — the entire books — and it copies verbatim expression…Here, as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search.  On balance, I conclude that the third factor weighs slightly against a finding of fair use.
  • An evaluation of market impact. Here, plaintiffs argue that Google Books will negatively impact the market for books and that Google’s scans will serve as a “market replacement” for books… a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays…Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales. Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use.

Clearly, this is a topic that warrants a third article. See you tomorrow.

Google Books vs. Every Published Author, Part I

I have written several books. Perhaps you have purchased one of them. If you did, thank you. As a result of your purchase, I probably collected about $1.25 in royalties. You may have read the book, and perhaps, you lent it to a friend. You may have copied a few pages, or used the book for research, maybe even quoted from my book in your own work. That’s fine with me, and I am sure it would be fine with just about any author.

Of course, I wouldn’t expect you to make copies of the book and distribute it, for free or for a fee, and I certainly wouldn’t expect you to publish some or all of my book’s contents on the web–even if you believed that what you were doing would make the world a better place. I expect that you think about my book in much the same way.

Denny_ChinHowever reasonable, that’s no longer the way things work. Now, it seems, making the world a better place is reason enough to freely distribute copyrighted work without permission of the copyright holder. Here’s the logic and the new law of the land as set forth by U.S. Circuit Court Judge Denny Chin in a case decided this month in favor of Google (which scanned and distributed millions of books, without permission, in the public interest) and the Author’s Guild (which cried foul, lost, plans to appeal to a higher court, and may lose again).

“First, Google Books provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears.” In short, Google Books completely transforms the use of books, especially in research, and it is currently in use in a great many research institutions.

Second, in addition to being an important reference tool, Google Books greatly promotes a type of research referred to as “data mining” or “text mining.” Google Books permits humanities scholars to analyze massive amounts of data — the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time.” So it’s fair to say that Google Books is a fantastic tool for scholars because it allows them to scan a lot of books quickly, identify and study patterns.

“Third, Google Books expands access to books. In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books. Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices. Digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities. Google Books facilitates the identification and access of materials for remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans.” Unquestionably, placing a lot of books in a gigantic database is very useful for all sorts of reasons and provides tremendous public interest benefits.

“Fourth…Google Books helps to preserve books and give them new life. Older books, many of which are out-of-print books that are falling apart buried in library stacks, are being scanned and saved.” Absolutely right, but “out-0f-print” and “public domain” are not the same thing. Many of my books are currently out-of-print, and I plan to republish some of them because they are my property. Anything that is in the public domain should be rescued for the good of the public. Anything that’s out-of-print, but still protected by copyright, cannot be reasonably treated in the same way.

“Finally, by helping readers and researchers identify books, Google Books benefits authors and publishers. When a user clicks on a search result and is directed to an “About the Book” page, the page will offer links to sellers of the book and/or libraries listing the book as part of their collections.” That’s nice, but let’s consider whether the copyrighted work should be there in the first place.

Somewhere along the way, my books were published, and a public library purchased a copy. We all understand that the library will buy one copy of the book and then distribute that book to any of its cardholders. Neither the publisher nor I, the author, granted the library any kind of right to digitize the book’s contents. Google borrowed my book from the library, scanned its contents (without my permission) and now distributes one book in whole and another in part (without my permission). And because my book is a useful book, a Federal judge has determined that this activity is not only permissible, but in the public interest.

The judge’s justification: the Fair Use doctrine that allows certain uses of copyrighted materials for the public interest. For more about that, be sure read part two (and part three).

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