Google Books Allowed To Continue After Supreme Court Rejects Authors Guild Appeal

After more than a decade of legal back-and-forth, the issue of whether or not Google Books — which allows users to search the texts of millions of scanned books — violates copyright law has been settled (for now), as the U.S. Supreme Court today refused to hear an appeal from the nation’s largest trade group for professional writers.

This lawsuit goes back to the original Google Library project, which launched in 2004 as a series of partnerships between the search engine behemoth and several of the nation’s top research libraries. These institutions select books from their collections for Google to scan and make searchable — without permission from the authors involved.

While Google Library has resulted in the scanning of more than 20 million titles, many of these books are either out of print or in the public domain.

The real problem for some writers came with the launch of Google Books, which allows users to freely search for terms and phrases — just like a normal Google search, but one that turns up results from scanned books instead of websites.

The search results may pull up what Google describes as “snippets” — actual images from the scanned books — but which some critics believe cross the line into copyright violation, especially because it often brings in pages before and after the sought-after term.

For example, a search for “wherefore art thou romeo” on Google Books may lead you to Harold Bloom’s analysis of Romeo & Juliet, but the results don’t turn up the full book. However, because of the frequency of the use of the name “Romeo” in the book, much of this particular title is freely available to peruse.

To get around making an entire book available via search, Google “blacklists” certain portions of scanned titles so that these pages will not show up. Additionally, since 2005 Google has allowed authors to request the removal of snippets from Books search results. Additionally, if a single snippet is deemed acceptable to meet the needs of a search — say a dictionary or glossary entry — no neighboring pages are shown.

The lawsuit that made it all the way to SCOTUS consideration began back in Sept. 2005, when the Authors Guild — a professional organization representing thousands of professional writers — sued Google on behalf of its affected members.

Three years later, Google and the Guild reached a settlement that would have seen the search engine pay out around $125 million to copyright holders but which would also have allowed the company to continue scanning titles and make money from them by running ads against the results.

This settlement was ultimately rejected by the court in 2011 because it 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.”

And so an amended class action complaint was filed in 2011, only to be dismissed in 2013 by a U.S. District Court judge. In dismissing the case, that judge declared that Google Books passes the 4-point sniff test for fair use.

• First, the program is transformative and non-commercial. It “digitizes books and transforms
expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” It also “does not supersede or supplant books because it is not a tool to be used to read books.”

• Second, the scanned texts have all been previously published and made available to the public. Unpublished works present a higher bar for fair use considerations.

• The third factor in the fair use test involves how much of the original text is made available. While the judge acknowledged that Google puts limits on what can be seen, this factor “weighs slightly against a finding of fair use.”

• Finally, there’s the consideration of what sort of impact Google Books might have on the market value for the scanned texts.

The Guild had argued that the Google snippets could serve as a “market replacement” for the scanned books, and that freeloaders could use multiple search terms to eventually obtain all the pages of a book for free, but the judge found that these arguments didn’t make sense.

“Google does not sell its scans, and the scans do not replace the books,” read the dismissal. “While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book.”

The Guild then appealed the dismissal to the U.S. Second Circuit, located in New York City, the heart of the U.S. book publishing industry. And in Oct. 2015, the appeals court not only upheld the lower court ruling, but explicitly stated that Google Books constituted a protected “fair use” of the scanned materials.

“The purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it,” explained the court. “In addition… Google allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods,” thus satisfying the “transformative” portion of the fair use test.

Additionally, the court defended the importance of Google’s snippets, as they provide context for the search results. Without snippets, users only know “whether and how often the searched term appears in the book,” according to the ruling. Merely knowing a term exists in a book is not sufficient for evaluating that book’s value as a resource.

“Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests),” explained the court.

The appeals court did acknowledge that the “snippet function can cause some loss of sales,” because once the searcher has found the information needed in that book, they may have no reason to purchase it. However, the court said this isn’t the same as producing an actual, competing substitute for the book.

Furthermore, most instances in which a search result would negate the need to buy a book involve the gathering of mere factual data — which is itself not copyrightable. If you’re looking to confirm the fact that Franklin D. Roosevelt had polio, a search for “roosevelt polio” might turn up book snippets containing the relevant information. The researcher’s needs are fulfilled without buying the book or borrowing it from a library, but what was gleaned from the search were mere facts that aren’t protected by copyright.

The Authors Guild attempted to take its appeal to the Supreme Court, but this morning the nation’s highest court rejected the Guild’s petition without comment, meaning the 2015 appeals court ruling stands and Google Books can continue on without having to pay any royalties or make any further concessions to copyright holders.

Authors Guild president Roxana Robinson says this morning’s news is a “colossal loss,” and “further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector, not only with books, but across the spectrum of the arts.”

“Blinded by the public benefit arguments, the Second Circuit’s ruling tells us that Google, not authors, deserves to profit from the digitization of their books,” said Mary Rasenberger, executive director of the Authors Guild. “The Second Circuit misunderstood the importance of emerging online markets for books and book excerpts. It failed to comprehend the very real potential harm to authors resulting from its decision.”

The Guild’s general counsel says the organization will monitor Google Books to make sure that it continues to operate under the fair use principals outlined by the appeals court.