Google Book Search and ‘Fair Use’

The issue of unclear law around the ‘fair use’ is well illustrated by the copyright situation, where Google Inc. introduced two new search products called Google Book Search and Google Image Search. These were the products, through which Google started digitizing the text and images of copyrighted and public domain books and for the first time expanded beyond indexing the online world of websites. It is also one of the most prominent cases where Google Inc. throughout many lawsuits with Authors Guild, always claimed ‘fair use’ as the reason for digitally scanning and storing million of books online. According to Judge Sprizzo (2017) presiding over one of the lawsuits, the Google claimed that they were simply only showing the “snippets” of the books. Do I think Google had a valid claim to fair use in the lawsuit?

In my assessment, the Authors Guild was right in their original view, because I agree that creating digital reproductions of copyrighted works is as they say, “massive copyright infringement.” That said, I believe that taking Google to court was a logical step to take.

On the other hand, however, if Google’s technical approach can guarantee that all users of Google Book Search are only limited to search within books, then I would also argue that seeing a small portion of the copyrighted text to reference and cite is not doing any harm to authors of copyrighted material.

For example, Google’s newest product ‘Google Scholar’ allows us to search within scholarly works traversing a huge number of scientific disciplines and is doing a huge favor to all students and authors by speeding up their research.

However, I would remain on a conservative side.

Google spent millions digitizing the copyrighted works, and they are likely not doing it from the goodness of their hearts. Google’s main business is and remains in advertising. According to Johnson, L. (2017), Google’s Ad Revenue hit $19 billion in 2016, so I would not be surprised to see, that Google’s intention for digitizing copyrighted works was to eventually used them as a source of advertising revenue.

As far as the term ‘fair use’, the general, universal and simplified definition description of ‘fair use’ refers to the usage of copyrighted material without special permission from the owner of the copyright; and according to Stim, R. (2013), the ‘fair use’ is a defense against a claim of copyright infringement.

The way I see it, the ‘fair use’ simply provides various authors, writers, and journalists with an easy way to comment and progress on the work of others; without having a specific granted exclusive right to do so. In my opinion, this law defining details of ‘fair use’ is tremendously important, because without ‘fair use’ and copyright and trademark laws, the progress on ideas of other could become extremely slow.

However, as we can see, the common description provides only a vague meaning, and that on its own cannot guarantee the full understanding. The comprehensive trademark law, on the other hand, is much more complicated and not as easily conveyed.

In my view, the term ‘fair use’ and reasonable use of copyrighted materials is also complicated by the different interpretations among geopolitical regions. It is also not so accommodating to authors that there are additional variances among particular areas of usage. The U.S. trademark law, for example, has the modifications for the use of the copyrighted material on the Internet, for text and data mining, or for use in social media and within professional communities.

The numerous past and many ongoing trademark lawsuits and copyright infringement claims demonstrate that the fair use term is often misinterpreted or misunderstood. The term ‘fair use’ and statements such as “All rights in this book are reserved. No part of the book may be used or reproduced in any manner…”, keep on intimidating existing as well as many new authors.

As a matter of fact, according to Weinreb, L.L. (1990), the judges, lawyers, scholars, as well as the array of original authors and their publishers on one hand; and journalists, critics, historians, commentators, and their publishers on the other are baffled when it comes to an understanding the meaning of the term ‘fair use’.

Considering we’re discussing Google, I was very happy to come across a Legal Help page hosted by Google, which gives a little bit of insight and background into how Google feels about the term ‘fair use’.

According to Google Legal Help (2017), regarding the four factors of fair use, when it comes to the purpose and character of the use, courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. As far as the nature of the copyrighted work, it apparently matters whether you’re using material from primarily factual works or not, because factual works are more likely to be fair than using purely fictional works. In terms of the amount and substantiality of the portion used in relation to the copyrighted work, the Google specifically says, that “Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions“. And lastly, regarding the effect of the use upon the potential market, Google states that uses that harm the copyright owner’s ability to profit from his or her original work by serving as a replacement for demand for that work are less likely to be fair uses.

As for myself, I found the most interesting the part that discusses 3rd factor of fair use (The amount and substantiality of the portion used in relation to the copyrighted work as a whole), because even that Google indirectly hints at their usage of small bits of copyrighted material as ‘fair use’ under the U.S. copyright law, they also mention very specifically, that “However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.” (Google Legal Help, 2017).

So, as per Google, and if I am translating the information correctly, they are essentially stating, that if authors use the copyrighted material, the less they take, the bigger is the chance that their usage of copyrighted material will be excused as a fair use (if it gets to court).

However, if an author uses even the smallest copy of the copyrighted material, which is considered as the “heart” of the work, the author may be infringing on the copyright and such use may not be excused as fair use. Or as Stim, R. (2013) states, you are more likely to run into problems if you take the most memorable aspect of a work.

This is, in fact, the part, that in my opinion is truly opened to interpretation, because author whose work is being copied may argue the importance or memorable aspect of the copied work.

As per Office of the General Counsel at the Harvard University, “Even a quantitatively small portion of a work may weigh against fair use if it is the most important or commercially valuable part of it.” (Ogc.harvard.edu, 2017).

That said, I’d like to ask everyone about their thoughts on this.

Google digitized 20 million books, allowing everyone to search insight the copyrighted material. As far as I am aware, the search capabilities extend to parts that could be considered as the “heart” of the work.

Considering Google’s own explanation, should that be considered as an infringement of the ‘fair use’ and the copyright law?

 

Future of Google Book Search

At the time it was a massive project and Google seen a lot of potential in it. According to Wallace-Wells, B. (2007), Google’s co-founder Sergey Brin told The New Yorker at the time that thousands of years of human knowledge, and probably the highest-quality knowledge is captured in books, so not having a project like Google Book Search would be just too big an omission.

Looking at the Google Book Search blog at http://booksearch.blogspot.ca/?utm_source=gbssite&utm_campaign=gbsblog&utm_medium=et, the last post to it was in 2012, which  hints that the project has slowed down to a halt.

According to Backchannel (2017), the Authors Guild may have lost in court, but it believes the fight was worth it because Google “did it wrong from the beginning,” says James Gleick, president of the Guild’s board. “They plowed ahead without involving the creative community on whose backs they were building this new thing. The big companies have a droit du seigneur attitude toward creative work. They think, ‘We are the masters of the universe now.’ They should have just licensed the books instead.”

What puzzles me though, is that given a Supreme Court victory I have expected the project to skyrocket and that Google will continue digitizing the books, but the current status suggests that that’s not the case.

My opinion for the slowdown of scanning and rollups of new updates to Google Books Search product? Well, looking at the Google’s business model, they probably couldn’t find the way to monetize this new content, because it wouldn’t be considered fair use to make money off of indexing copyrighted content. I think that’s a much bigger reason for the slowdown than any issues connected to lawsuits. After all, they’ve won the lawsuit. According to Backchannel (2017), Erin Simon, Google Books’ product counsel stated that “This is now established precedent, where everyone benefits. It is going to be in textbooks as it’s supremely important for understanding what fair use means.”

We know that Google is always willing to take on large trials/error projects on a global scale, just to abandon what did not generate the necessary traction. Just to name a few, this is the list of projects I recall as discontinued or abandoned: Google Answers, Google Audio Ads, Google Catalogs, Google Labs, Google Buzz, Google Directory, Google Bookmarks, Google Health, Google Knol, Google Accelerator or Google Wave, but there is probably many many more of such services. So while it’s not very likely that this project will eventually be phased out completely, due to the large user base, we may not see any further cash being spent on it.

 

 

References

Stim, R. (2013) What Is Fair Use?. [online] Stanford Copyright and Fair Use Center. Available at: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ [Accessed 17 Apr. 2017].

Weinreb, L.L., (1990) Fair’s Fair: A Comment on the Fair Use Doctrine. Harvard Law Review, 103(5), pp.1137-1161.

Sprizzo (2017). [online] Available at: http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/authors-guild-v-google/Authors%20Guild%20v%20Google%2009202005.pdf [Accessed 17 Apr. 2017].

Aiken P. (2017) The Authors Guild – Authors Guild Sues Google, Citing “Massive Copyright Infringement”. [online] Available at: http://www.authorsguild.org/advocacy/articles/authorsguildsuesgooglecitingmassivecopyrightinfringement.html [Accessed 17 Apr. 2017].

Johnson, L. (2017). Google’s Ad Revenue Hits $19 Billion, Even as Mobile Continues to Pose Challenges. [online] Adweek.com. Available at: http://www.adweek.com/digital/googles-ad-revenue-hits-19-billion-even-mobile-continues-pose-challenges-172722/ [Accessed 17 Apr. 2017].

Google Legal Help (2017). What is “Fair Use”? – Legal Help. [online] Available at: https://support.google.com/legal/answer/4558992?hl=en [Accessed 18 Apr. 2017].

Stim, R. (2013). Measuring Fair Use: The Four Factors. [online] Stanford Copyright and Fair Use Center. Available at: http://fairuse.stanford.edu/overview/fair-use/four-factors/ [Accessed 18 Apr. 2017].

Ogc.harvard.edu. (2017). Copyright and Fair Use. [online] Available at: http://ogc.harvard.edu/pages/copyright-and-fair-use [Accessed 18 Apr. 2017].

Backchannel. (2017). How Google Book Search Got Lost – Backchannel. [online] Available at: https://backchannel.com/how-google-book-search-got-lost-c2d2cf77121d [Accessed 19 Apr. 2017].

Wallace-Wells, B. (2007). Google’s Moon Shot. [online] The New Yorker. Available at: http://www.newyorker.com/magazine/2007/02/05/googles-moon-shot [Accessed 19 Apr. 2017].

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