Why the Authors Alliance Amicus Brief Supports Google’s Fair Use Defense

Posted July 10, 2014

By Authors Alliance co-founder Pamela Samuelson.

It was nearly a decade ago that the Authors Guild and three of its members brought a class action lawsuit against Google. It charged that Google’s digitization of in-copyright books from major research library collections for its Book Search project was copyright infringement. The plaintiffs have asked for an award of $3 billion in statutory damages against Google and an injunction to remove Book Search from the Internet.

What a tragedy it would be if the Authors Guild prevailed in this lawsuit—and not just for members of the public who have come to depend on Book Search to find information, but also for the overwhelming majority of authors who want their books to be discoverable through full-text searchable databases such as Book Search.

Google’s main defense has always been that this scanning was fair use because it helps users to find books containing information relevant to their queries without harming the market for the books. Indeed, by providing links to online stores from which the books can be purchased, Book Search is likely to enhance the marketability of books in this database.

Google won its fair use at a lower court last fall. The Authors Guild appeal is now pending before the Second Circuit Court of Appeals, which has long been the most influential court on copyright issues. Oral argument will likely occur in the fall. A decision on the merits should be rendered in the first half of 2015.

The Authors Alliance has today filed a brief in support of the lower court’s fair use ruling. The Alliance has an interest in this litigation because a substantial proportion of our members have books in the Book Search database. Several dozens of books written by Alliance Advisory Board members can, for instance, be found through Book Search. They includes nine by Harvard historian Robert Darnton, seven by Lawrence Lessig, five by Michigan economist Paul Courant, four by former Poet Laureate Robert Pinsky, three by former President of the Modern Language Association Sidonie Smith, and one by Nobel Laureate Harold Varmus. Because Authors Alliance members want their books to be found, the organization supports Google’s fair use defense in this case.

More About the Brief

The Authors Alliance brief makes three main arguments.

First, the Alliance agrees that creating a full-text searchable database of books to make them more discoverable is a “quintessentially transformative use” of the books, as the Second Circuit recently ruled in a related case, Authors Guild v. HathiTrust. The HathiTrust decision affirmed that the HathiTrust Digital Library made fair use of books that Google had scanned from its research library partners’ collections for Book Search, copies of which were made available to the libraries for their separate use.

Second, the overwhelming majority of books in the Book Search database are scholarly non-fiction works that are out-of-print and likely to be moldering on the physical shelves of research library collections. Those works were largely created by authors who wanted to share the knowledge and insights the authors gleaned with other researchers. Book Search helps readers to find these books and increases the chance that the books will find new audiences and markets, as well as promoting the intellectual legacies of authors who wrote them to contribute to the ongoing progress of knowledge.

Third, Book Search provides broad social benefits to authors and to the public by creating new ways for users to find books, facilitating new forms of research through text and data mining, expanding access to books, helping preserve books to give them new life, and generating new audiences and new sources of income for authors and publishers by helping readers find books. Social benefits of these uses can and should be taken into account in fair use cases.

 

Book Search and HathiTrust

By ruling in favor of HathiTrust’s fair use defense, the Second Circuit has already laid the groundwork for an affirmance in the Authors Guild v. Google lawsuit as well. (An earlier Authors Alliance blogpost hailed the HathiTrust ruling as a victory for authors who write to be read.)

The Google case is similar to HathiTrust in several key respects: Both cases involve the creation of a full-text searchable database of mostly scholarly books (to a large extent, the very same books). The databases and their search capabilities could not have been created without scanning the entirety of the works. The databases are transformative because they were created for a very different purpose than the originals, namely, to enhance public access to knowledge by making books more discoverable. And the harms the Authors Guild alleges from the existence of these full-text searchable databases are speculative.

The main difference between the fair use defense in the HathiTrust and Google cases is that word searches conducted on the HathiTrust database yield only identifying information about books that contain the search terms and page numbers where the referents can be found, whereas Google serves up a small number of snippets of text from books responsive to user search queries.

There are at least four reasons why providing snippets should not undermine Google’s fair use defense. First, snippets serve as pointers to information, akin to the “thumbnail” size images in the prior search engine cases that the appellate court in HathiTrust cited approvingly.

Second, most Book Search users need snippets to decide whether search results are really relevant to their queries. They are typically less knowledgeable about the topic of their query, less sophisticated in research skills, and in greater need of snippets to help them know if they have found the books or information they are looking for than users of HathiTrust are.

Third, Google has been careful to design Book Search to avoid supplanting market demand for the books in the database. Book Search does not display the contents of certain types of books (e.g., dictionaries, reference books, and recipe collections) because snippets might supplant demand for copies of the original. Google has designed Book Search to protect against abusive snippet searches that might enable re-creation of much of the text of the works. And those who object to snippet views can ask for the snippet feature to be unavailable for their works.

Fourth, snippet views help readers find authors. This is more likely to enhance demand for books relevant to search queries than to supplant demand. Authors are more likely to benefit financially from Book Search with its snippets than from HathiTrust with its more limited information display. Book Search’s more robust results are more likely to link readers to the books they’re looking for, and its users might even buy copies of relevant books using direct links to stores from which the books may be purchased.

 

By bringing this lawsuit, the Authors Guild and its three member co-plaintiffs have unfortunately acted against the best interests of the overwhelming majority of authors who want their works to be found. Survey evidence shows that only a tiny minority of professional authors (4%) think that Google Book Search will have a harmful effect on the markets for their works. The interests of this small minority should not override the interests of authors who want Book Search to be available so that researchers can find their books and learn from the knowledge the books contain. A ruling in favor of Google’s fair use defense will promote the constitutional purposes of copyright without undermining the market for books. The Authors Alliance has confidence the Second Circuit will realize this and affirm the lower court ruling of fair use.

Download the Authors Alliance brief here.

2 thoughts on “Why the Authors Alliance Amicus Brief Supports Google’s Fair Use Defense

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