back to article Google wins book scan battle. Again. Can post pages online. Again

A US appeals court has today ruled that Google Books does not infringe on US copyright. The 2nd Circuit Court of Appeals in New York upheld a 2013 verdict from a district court that Google's scan-every-book-possible project is protected as "fair use." The Authors Guild had charged that Google was violating its copyrights when …

  1. Anonymous Coward
    Anonymous Coward

    Putting aside the technical legal aspects of this case, you can't help wondering why publishers would want to spurn something that could lead to an increase in sales for their books through legitimate channels.

    Lawyers have a habit of biting onto the minutiae of legal niceties and missing the bigger business picture.

    1. The_Idiot

      But it's...

      ... the 'legal niceties' that can bite you.

      If i read this, on the surface it seems that if I borrow a book from the library, take it home, scan it and digitise it, I'm not breaking the law so long as I put up a 'searchable page linking to places where people can buy the book'.

      OK. I know. This was about Google doing it. But how far is it from the to someone using the same decision to justify a smaller operation doing the same? And then a smaller one? And then a smaller, until it's the individual?

      Plus, it's arguable if this would help sell more books. People likely to buy a book are, in my limited experience, more likely to start at Amazon than do a Google-driven search. Not everyone, for sure, but no small number I'd suggest.

      Alright. Yes. Or the Apple store if they're so inclined.

      Of course, I'm probably wrong. After all, I'm an Idiot...

      1. Anonymous Coward
        Anonymous Coward

        Re: But it's...

        "People likely to buy a book are, in my limited experience, more likely to start at Amazon than do a Google-driven search."

        Amazon can only index titles on very general criteria - although the "recommends" feature is a useful guide from people reading similar books.

        I have bought several books after a Google search on a name, place, subject, or event found a passage of unexpected relevance in a Google digital book.

    2. Ian Michael Gumby Silver badge
      Boffin

      @skelband

      So...

      How does the author or their estate get paid when they don't know that a book sale had occurred? Remember that Google is digitizing out of print books that were 'orphaned' even though they still had active copyrights in place.

      The only one who will make money from this is google. I can think of half a dozen ways they can make money even if they allow access for free.

      1. Anonymous Coward
        Anonymous Coward

        Re: @skelband

        > How does the author or their estate get paid when they don't know that a book sale had occurred? Remember that Google is digitizing out of print books that were 'orphaned' even though they still had active copyrights in place.

        That's a very good question: How does an author get paid if the work is orphaned?

        If the book is not orphaned, then you would have to buy the book through a legitimate channel which should hopefully reward the author or publisher.

        > I can think of half a dozen ways they can make money even if they allow access for free.

        That's nothing wrong with making money.

        If they are not selling the book, rather a search service, then I don't see the ethical issue surrounding this. If however, their service means that people who would buy the book now need not because of the service, I can see why there would be issues.

        1. Tom 13

          Re: That's nothing wrong with making money.

          No there's not. There is something wrong with making money from somebody else's work, which is precisely what IP law is supposed to prevent. This case is particularly pernicious in that Google did not even BUY the books, they borrowed them from libraries. They should have been required to negotiate the rights with authors/agents/publishers of the books especially where the author/agent/publisher is known or easily discovered.

          Yes, I'm willing to treat orphaned books differently. But there again Google have not structured anything to reserve money that ought to go to the authors of the published books.

          This is simply another case of a megacorp running roughshod over the rights of the little guy, even if they are arguing it helps another little guy.

      2. Doctor Syntax Silver badge
        Facepalm

        Re: @skelband

        "How does the author or their estate get paid when they don't know that a book sale had occurred?"

        In exactly the same way that they get paid if someone walks into a bookshop, looks through the shelves and finds a book they're interested in. The only difference is that with Google the customers have a search mechanism which enables them to find books they might otherwise have missed.

      3. tom dial Silver badge

        Re: @skelband

        I believe the correct answer here is that the author or estate has, in what probably are nearly all cases, been paid any royalties due already. Existing copies of out of print books, whether in copyright or not, generally may be sold at will without any further royalty payments due under the "first sale" doctrine. (That's in the US, but that is where the court's decision applies). A royalty may be due if new copies are produced, and if I remember correctly, Google has proposed or agreed to put such royalties in a pool of some kind where they produce a new copy and the proper copyright holder cannot be located.

    3. Doctor Syntax Silver badge

      "Lawyers have a habit of biting onto the minutiae of legal niceties and missing the bigger business picture."

      Especially in the publishing world it seems. One organisation has been reported putting the bite on the reading of books to groups of children in libraries. Anybody would think that children who have been read to aren't likely to spend the rest of their lives as the publishers' market.

      1. Grikath Silver badge

        That's the point isn't it? This isn't about the authors, or their "estates" . Up to about 15 years ago, authors didn't sell books. Publishers did. And it's the Publishers pushing for this...

        1. Tom 13
          FAIL

          Re: authors didn't sell books.

          Right. That's why no author has ever done a book signing at a book store or gone on a talk show to talk about their book.

    4. Anonymous Coward
      Anonymous Coward

      Publishers like Newpapers are so far behind the curve.

      Unfortunately publishers failed to invest in moving into the digital market, while Google spent millions on digital R and D.

      They basically forfieted the digital marketplace.

      This is sad as having one entity controlling most of digitized knowledge for profit is not the same as free libraries, bookstores, and schools that seek to collect and preserve diverse points of view.

      1. tom dial Silver badge

        Re: Publishers like Newpapers are so far behind the curve.

        Google only "controls" this digitized knowledge because no other organization has made the investment of time and money into creating their own similar, or perhaps better, database.

  2. graeme leggett

    US only?

    This being a US court, despite a certain tendency to assume the world revolves around the USA, this doesn't necessarily mean google books scanning is legit everywhere does it?

    1. Doctor Syntax Silver badge

      Re: US only?

      This would be a ruling which applies in the US only. If you make much use of Google for out-of-print books you will find there's sometimes a difference between what you can see in the US vs what you can see in the UK. In the US the PDF might be downloadable but the UK only gets a snippet view. Presumably there's a difference in what's considered to be in the public domain between the countries but it's difficult for the user to understand what the criteria are. However proxies are one solution to that. Another is archive.org. One considerable annoyance is that books which have been available in PDF are sometimes withdrawn as someone reprints it.

  3. Hollerith 1

    Shockingly bad scans

    Google scanned huge numbers of books 'for' libraries, who then had to pay to use the digital copy of the books they owned, and the scanning, in my experience, is pretty bad. Chunks are missing, whole sections are alphabet sphagetti, it's sloppy, and obviously books are ways Google can get eyes on their ads, as opposed to offering a service. I can't think of how I (as a published writer) will benefit from Google doing this to my books. If people want to buy them, they will look me up and go buy them.

    1. Anonymous Coward
      Anonymous Coward

      Re: Shockingly bad scans

      " If people want to buy them, they will look me up and go buy them."

      You are assuming people know about the books you write. Google Books is very good for finding books one has never heard of that contain passages relevant to a search's criteria.

      1. Doctor Syntax Silver badge

        Re: Shockingly bad scans

        "If people want to buy them, they will look me up"

        Look you up where? Let me guess - Google.

    2. nijam

      Re: Shockingly bad scans

      > I can't think of how I (as a published writer) will benefit from Google doing this to my books.

      I fear that such an inability is hardly something a published writer should be admitting to.

  4. Tromos

    I hope they've carefully scanned every page...

    ...including the one with "No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without the prior written permission of the publisher."

    1. jaduncan

      Re: I hope they've carefully scanned every page...

      Publishers can put whatever they wish. They can't trump fair use, much as they have frequently failed to prevent resale through attempts to gut first sale doctrine via similar legal claims.

      1. Tom 13

        Re: They can't trump fair use,

        Fair use has always previously been interpreted to mean ONLY a snippet. Google scanned everything WHOLESALE. That really should have been the beginning and end of the case. The whole "only snippets are available to the public" is a red herring. Google's business model depends on scanning the whole book, which is a clear violation of copyright law.

        You can argue publishers are stupid NOT to agree to allowing Google access to their catalog materials to publicize it, but that is wholly separate from the copyright infringement issue.

  5. Ivan Headache
    Headmaster

    Brushes of ?

    Brushes of ?

  6. Anonymous Coward
    Anonymous Coward

    Books

    I've heard of those.

  7. John Savard Silver badge

    Another Viewpoint

    While the act of displaying snippets may be within fair use, Google still has in its personal possession complete copies of copyrighted books on its hard drives, which it created without the prior permission of the copyright holders. That is a copyright violation in and of itself.

    However useful Google Books may be in encouraging sales of the books in question, it is also clearly in the interests of authors to establish that copyright law says what it means, and means what it says, and "No part of this book may be reproduced in any medium whatsoever, or stored in a digital retrieval system, without the prior written permission of the copyright holder" means exactly that (less the statutory fair use exemption, of course).

    If nobody at Google goes to jail over this, somebody else is going to try.

    It's true that it would be a shame to have the effort put into digitizing those books wasted - perhaps the data could be maintained by the government in a secure facility until such time as their copyrights expire. Or perhaps it would be enough if Google had to pay the salary of government officials who watched over their data trove to make sure that it was only accessed for snippet searches, and no one at Google was sneaking in to read those copies of copyrighted books.

    1. Grikath Silver badge

      Re: Another Viewpoint

      That's a tough one.. As long as Google does the copying/digitising just for internal reference, as in : being able to provide those searchable snippets, then it may still be "fair use". Even if it's done on an "industrial" scale, the originals do not come in digitised format, and have to be processed to be used that way. At Google's own cost.

      In a sense they're doing nothing else than "reading" the books, putting a classification system on it, and provide excerpts to those interested. Similar to how libraries use the Dewey Decimal system, with Uni libraries often offering the title + abstract in some format free of charge to see whether or not a certain book/article is indeed what you're looking for. It's simply that digitised books allow a wider range of offering abstracts/quotes/partial reproductions.

      If they go as far as publishing the works in their database in whole, either as-is, OCR'ed or edited, then they'd need to make a deal with any right holders, obviously, but not before.

      The court case in question clearly found that the way Google is going about things currently is within limits, although they're skirting the edge there. They may actually move on to actually publishing, either directly or through a subsidiary. There's a market in "legacy" titles, and quite a lot of books are only available as Antiques and damned. hard. to. find. let alone get access to, in fiction and non-fiction. Both from a viewpoint of preservation and availibility this would be a Good Thing. It's a massive undertaking, and only a giant like Google really has the resources free to pull this off. Someone needs to cough up the cash, technology and man-hours to do all this. May as well be Google. And yes, as far as I'm concerned they are welcome to a fair return on their effort on this. It's far preferable to me than datamining search habits while skirting privacy issues. At least this would class as actual "work" and "added value".

      1. Tom 13

        Re: just for internal reference

        No it's not. The business model depends on scanning the whole book.

        And no, it's not just for internal reference. If you are persistent you can look up "snippets" of the book until you have read the whole thing. That was NEVER an intention of the fair use exception to copyright protection.

        1. Aedile

          Re: just for internal reference

          Please see my previous post. You can not keep looking up "snippets" until you get the entire book.

          A quote from Ars:

          "The judges also carefully analyze Google's use of "snippet view." The snippets are small, normally an eighth of a page. No more than three snippets are shown for any searched term, and no more than one per page. Google also "blacklists" some parts of each page—and one full page out of each ten—excluding them from snippet view entirely. Finally, snippet view isn't available in cases where a snippet might entirely satisfy a reader's needs, such as in dictionaries or cookbooks."

    2. Doctor Syntax Silver badge

      Re: Another Viewpoint

      "That is a copyright violation in and of itself."

      The court has said otherwise. It's their opinion that counts.

      1. John Brown (no body) Silver badge

        Re: Another Viewpoint

        "The court has said otherwise. It's their opinion that counts."

        Hah! The courts opinion only counts if you've run out of money to appeal the decision See cases involving Goolge, MS, Apple, Uber et al :-)

    3. Anonymous Coward
      Anonymous Coward

      Re: Another Viewpoint

      Which is exactly my original point.

      If Google is offering an index service that leads to more sales for publishers or authors then all this bleating about technicalities is a bit like shooting yourself in the foot to defend your right to do so.

      Other argument like "well Google is making money from doing this" is just so unbelievably sour grapes.

      1. Brent Beach

        Re: Another Viewpoint

        Sour grapes? Perhaps.

        Fair use in this case is being stretched quite a bit.

        Usually fair use involves putting a bit of a copyrighted work into a new larger work, adding new material, creating new content.

        For many of these books, google adds nothing but the index. There is no new content, only old content in a new form. Google adds access, not content.

        Where a book is still in copyright, it makes sense that google share some of its revenue (after its costs have been recovered) with the copyright owner.

        1. Anonymous Coward
          Anonymous Coward

          Re: Another Viewpoint

          > Fair use in this case is being stretched quite a bit.

          Well the court disagrees. You are either on the right side of the law or you're not. There is no in-between.

          Reminds me of some quotations from a UK politician (I forget who) suggesting that people that drive "at the speed limit" are skirting the law. Comments like that are dangerous, slippery slopes to be going down.

    4. Aedile

      Re: Another Viewpoint

      Ars Technica has an excellent write up about this. To summarize:

      Yes Google is making an entire copy of the book.

      No The copy can't be accessed by anyone. The courts reviewed the security and found it sufficient.

      Yes Google shows small snippets

      No the snippets are not replacements for the original work. In fact where the snippet could replace the original they won't show it. IE recipes. They also show no more than 8 snippets from a single source and they won't show snippets at all from certain pages.

      Yes Google has links on the page if you want to buy the book

      No they aren't showing any other ads

      Finally the Ars article notes that researchers are also using this information to do research on word usage and such. Something that couldn't be performed if the entire book wasn't scanned.

      1. Tom 13

        Re: Yes Google is making an entire copy of the book.

        And that should have been the end of the issue, because that is exactly the point at which Google broke the law. The protective bits they tacked on afterward are irrelevant. Many a college copy shop has lost copyright infringement on just that basis. No resale, the copy shop didn't even make the copies it was done on self-serve and the copy remained in the possession of the student, but they lost thousands anyway.

        1. Aedile

          Re: Yes Google is making an entire copy of the book.

          Quote from Ars: "The third factor is Google's mountain to climb: the amount of the copyrighted work that's used. Google scanned the entire book. But that didn't kill its argument. Courts have rejected any "categorical rule" that a whole copy can't be a fair use."

          As such you are incorrect saying at that point Google broke the law and it should have been the end of the issue. It is also why the court considered all four factors of fair use when making their ruling.

          http://arstechnica.com/tech-policy/2015/10/appeals-court-rules-that-google-book-scanning-is-fair-use/

  8. Anonymous Coward
    Anonymous Coward

    "[...] and no one at Google was sneaking in to read those copies of copyrighted books."

    Every brick book store would also have to employ a government official to make sure no customers actually read their books while browsing the shelves. At the same time comfortable chairs that encourage such customers would have to be removed. Better still - wrap the books in plastic so that the only available immediate information is the publisher's chosen puff on the back cover.

    1. earl grey Silver badge
      Trollface

      Wrapped in plastic

      Oh, oh....I've read those books and mags wrapped in plastic... Always very educational!

  9. Mikel

    It takes a Google

    It takes a huge good guy company like Google to wage a decade long battle with the copyright lobby to win back for us what *was always our birthright*. Because remember, that's what this finding says. Fair use is real. We have always been legally entitled to do this thing Big Print doesn't want us to do: build a modern Library of Alexandria. Their malicious litigiousness was always stripping the less well heeled technologists of their civil rights, preventing the social good in what their nearsightedness saw as a pursuit of profit and a protection of their publishing oligopoly.

    1. phil dude
      WTF?

      Re: It takes a Google

      clearly some reform is needed when the life of a copyrighted work can exceed the creator by more than fifty years...and last almost a century.

      Mickey Mouse might be public domain by 2024, so that's fair warning there will be some contrived emergency to change the law again....

      P.

      1. PNGuinn
        Joke

        Re: Mickey Mouse

        Some commentards might suggest that win 10 proves that Mickey Mouse went public domain in 2015 ...

    2. PNGuinn
      Flame

      Re: It takes a Google

      It says something about an issue when the big G can be described as "good" in relation to it.

      Icon because of what happened to the library of Alex.

    3. The_Idiot

      Re: It takes a Google

      "Fair use is real."

      In the US. Elsewhere? It's a matter of debate.

      For instance:

      https://en.wikipedia.org/wiki/Fair_use

      "Sources differ on whether fair use is fully recognized by countries other than the United States. American University's infojustice.org published a compilation of portions of over 40 nations' laws that explicitly mention fair use or fair dealing, and asserts that some of those laws, such as Canada's, have evolved (such as through judicial precedents) to be quite close to those of the United States. However, Paul Gellar's 1999 International Copyright Law and Practice says that while some other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use."

      1. Tom 13

        @The_Idiot Re: In the US. Elsewhere?

        I think fair use is a good idea. Certainly criticism and review need exceptions to exist. But anything that STARTS with the wholesale copying of the book is NOT fair use.

  10. PhilipN Silver badge

    Ding dong. Reality calling

    What a load of bollocks. A book may change hands or get read dozens of times - anyone can buy books online which are "pre-read" - anyone heard of abebooks for example? and the author never sees a penny after the first sale. Never mind the thousands of books which never go out of the library.

    Thank God out-of-print and out-of-copyright books - some of them quite magnificent components of and contributions to yuman kulcha - are being made available. Publishers are businesses and could not be arsed to do print runs of a few thousand - there is a known limit to how many universities for example are going to spring a large amount for this tome or that regardless of how immensely valuable it is in the cultural sense. No need even to wonder about it.

    Different but related point but who knows - one day the Vatican may even open up the many miles of shelves it maintains of books banned over the centuries.

    1. Grikath Silver badge

      Re: Ding dong. Reality calling

      http://digital.vatlib.it/ You mean this one?

      Preciously little "banned books" in there. Those are often in private collections, and generally unavailable to the public, or available for digitisation. Or quite well known.. After all "banned by the Church" once had the same effect on "must-have/see" as an X rating in the US...

  11. Jonjonz

    Google Steals

    Between Googles Youtube theft of millions of copyrighted films and clips and this blatant copying of copyrighted books, this is an example of the courts always siding with the powerful at the expense of the community. The Chololate Factory spends tons of cash via lobbyist at all levels of government. They will soon be featuring you as an unpaid testimonial selling some Google product.

    1. Anonymous Coward
      Anonymous Coward

      Re: Google Steals

      > this is an example of the courts always siding with the powerful at the expense of the community.

      I think you'll find that they are siding with Google at the expense of big publishers.

      Very few authors have any skin in this game.

      "The community" would be quite happy to have much more access to literature.

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