A Landmark, 10-Year-Old Google Books Copyright Case Has Finally Been Decided
Screenshot from Catch-22's cache on Google Books

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A Landmark, 10-Year-Old Google Books Copyright Case Has Finally Been Decided

The case represents a leap forward, a rolling back of some of the bizarre and downright technophobic attitudes of the early 2000s.

After ten years of litigation, the copyright fight around Google Books—once considered a controversial, high-stakes fight—is likely over. On Friday, the US Appeals Court for the Second Circuit ruled that the Google Books program is fair use, affirming the lower court's decision.

When the lawsuit began, it provided a tricky set of questions at the frontier of digital fair use. Today's decision is welcomed by librarians and fair use advocates, but the ruling hardly comes as a surprise. That in itself is a marker of changed times, a paradigm shift from the early 2000s when absolutely anything involving copyright and computers was still fraught with peril.

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In 2005, the Authors Guild, a professional organization for writers, sued Google for scanning and making public portions of commercially available works. Today, most of us know and use Google Books, and know full well the feeling of getting thwarted by "Some pages are omitted from this book preview" just as we get to the exact page we need. We accept that that's the difference between a freely available database and an actual book, whether we acquire it with money or look at it at a library.

The idea of copying and transmitting digital content for transformative purposes is no longer alien

The full text of digitized books is, of course, still hosted somewhere on the Google servers, so that the search function can actually be useful. Full text is also made available to various university libraries, so long as the works are already in their collections.

Google Books is a godsend for an academic fact-checking an exact quote or a student looking up the year when Franklin D. Roosevelt came down with polio (a hypothetical use case that Circuit Judge Pierre Leval actually describes in his opinion). But we know it's not a replacement for books.

And now, with the Second Circuit decision, the law agrees. While the Authors Guild, the plaintiffs in this case, might appeal yet again, a rehearing at the Second Circuit or a hearing in front of the Supreme Court is unlikely to be granted.

That's what this lawsuit was about: snippets, university libraries, and big chunk of data left unread by human eyes, being processed by search engine algorithms. This is what the Authors Guild called a threat to the livelihood of writers everywhere. In general, this was not a good look for the Authors Guild.

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But as James Grimmelmann, a law professor at the University of Maryland, noted on Twitter today, the case was actually high-stakes and controversial when it began a decade ago. It spawned countless academic articles over the years, and became eternal fodder for panels, workshops, and classes. It was a genuinely weird case, because the digital aspects—such as the complete and total copying of works, though made unavailable to the public—didn't quite line up with what the law recognized about fair use.

This case is a leap forward, a rolling back of some of the bizarre and downright technophobic attitudes of the early 2000s

Note, for example, that the same dynamic—making digitized copies available to people who already own copies—is in play at Mp3.com v. UMG, a 2000 case where the service mp3.com offered streaming audio for users who verified ownership of records by first inserting CDs into their computers. Mp3.com was found liable in that case, but since it was decided in a lower court in New York, whatever inconsistencies there are between it and Authors Guild v. Google are overridden by the latter.

That's symbolic of what this case stands for: a leap forward, a rolling back of some of the bizarre and downright technophobic attitudes of the early 2000s. The last decade has not been great for digital copyright, but it's been a vast improvement over the decisions coming out of the early 2000s, where courts were just beginning to grapple with Napster and its progeny. Things have changed, little by little. The idea of copying and transmitting digital content for transformative purposes is no longer alien. In ten years, Google Books has gone from a controversial lawsuit to a landmark, textbook case for fair use.

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The complete decision.

The opinion was written by Judge Pierre Leval, who just happens to be the same academic who invented fair use doctrine as is commonly understood today. Although fair use dates back three hundred years, all the way back to the English law that forms the foundation of American law, today fair use is viewed through the lens of transformativeness: Is the new work transformative? And that comes out of an influential 1990 law review article by Leval. Leval used the Google Books decision to restate and elaborate fair use, cementing his mark and influence on the law 25 years after the publication of "Toward a Fair Use Standard."

Authors Guild v. Google is a case that will be taught and cited for years to come. It's full of extremely quotable pronouncements, like, "Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship."

In a time when various interest groups repeatedly refer to fair use as a "loophole" or "controversial," Authors Guild v. Google Books is a powerful reminder that that's not what the law says at all.