Google Books' Victory Widens the Scope of Fair Use

Google just scored a big victory in the eight-year legal saga over its ambitious project to digitize and catalog every book ever printed. Judge Denny Chin of the Southern District of New York sided with Google today by ruling that the scanning project didn't violate copyright, as the authors and publishers representing the rights holders had claimed.

It's a big win for the tech company, book lovers, and advocates of internet freedom and freedom of expression. Most everyone, other than the people suing Google, agree it's the right decision; beyond that, the ruling says a lot about how we view "fair use" today—and how that's changed in the decade since the lawsuit first started and likely will continue to change if the court's decision stands on appeal.

The class-action lawsuit hinged on the fair-use provision of digital copyright law—maybe the grayest gray areas of the outdated law. Here’s the quick rundown: Back in 2004 Google set out on its audacious project to digitize and organize the all the printed books in the world. This didn’t sit well with the authors and publishers of some of those books, who claimed that scanning meant copying, and copying—without first getting permission—was a violation of the law.

On the other side, Google argued that it was within its legal right to digitize the books because it was only making parts of the copyright-protected material viewable online and in search results—simply having a scan without distributing it doesn't affect the potential market for the work, one of four factors for determining fair use.

As it stands, the copyright-protected books whose authors didn’t give Google permission are still indexed and searchable, but the pages are blurred and thus not readable. For the rest—and all books in the public domain—the full text is freely available.

Today, the judge agreed that Google Books falls under the purview of fair use, and moreover that an online library of the world’s books would be a great benefit to the public. The "public-good" argument is, after all, at the heart of why the fair use provision of intellectual property law exists, as EFF noted today: "To make sure copyright serves, and does not impede, the public interest."

It’s being hailed as win for innovation, free expression, and creativity on the internet—all made possible by claiming fair use in the digital age of clipping, remixing, transforming, and aggregating someone else's creative work. Sometimes that's a clear-cut distinction, but more often than not, it's a murky area left up to interpretation. Each legal decision further defines the scope of the all-powerful fair use enabler. That scope most likely ballooned after today's ruling, which could set a precedent for future cases and is why EFF called the decision a "tremendous victory for free speech."

But it's worth noting that Google’s not really playing in the same arena as everyone else. When it first launched Google Books, originally called Google Print, the company's strategy for navigating this gray area of copyright law boiled down to the old adage, "better to ask for forgiveness than permission." And it could, because it's a behemoth corporation that can afford to make that gamble, even when if eight years of lawsuits follow. Smaller startups or creative individuals can't always afford to take the same risk.

Regardless, the court coming down on the side of a tech company over the publishing industry says a lot about the evolution of copyright and content over the years. And evolved it has. In an interview with the New York Times today, law professor James Grimmelmann made the good point that when the legal battle started eight years ago, the concept of digital books were still a nerve-wracking novelty. Today, e-books are a major fraction of publishers' profits.

Which leads us to the money—what it always boils down to. The Authors Guild and Association of American Publishers—who have already said they plan to appeal the decision—claim that it's not fair for Google to profit off someone else's intellectual property. But Chin ruled that even though Google can sell ads beside the limited preview search results for books, it’s not benefiting from "direct commercialization of copyrighted works."

What's more, just because Google is making money doesn't mean authors and publishers are losing it. The project "doesn't negatively impact the market for books,” Chin said, and in fact it could boost book sales by highlighting in search results where to buy the material, and helping searchers find relevant reads with a quick, online query. It's free publicity for the authors, and helps preserve and unearth books that would otherwise gather dust in desolate libraries.

It's a no-brainer in the age of digital content to have a digital card catalog for an online library of books—quaint as it is to study in a peaceful room full of literary masterpieces instead of on your couch in your sweats. And while it’s fun to hate on corporate giants, it's also natural that Google would lead this transition. It started out, after all, as a search engine with a rather straightforward, if ambitious, goal to organize the world's information.