Why Google is Right and The Authors Guild is Wrong about Scanning
From GigaOm:
A federal court has found that scanning books for search — which Google was doing for a university project called the Hathi Trust — is clearly covered by the “fair use” principle in copyright law, which could help Google in its own lawsuit with the Authors Guild.
. . . .
The seven-year fight between authors and publishers over Google’s attempt to scan and digitize millions of books as part of its Google Library Project is almost certainly one of the longest-running copyright battles of the web era. The company recently agreed to settle a lawsuit launched by the Association of American Publishers, but a similar lawsuit with the Authors Guild is still under way — and now Google has just been given what looks like some powerful ammunition from a federal court in a related case, involving a group of universities known as the Hathi Trust, who were helping the search giant with its scanning program for research purposes.
There are elements of the Hathi Trust decision that make it different from the issues raised by the Google case, since it involves universities rather than a corporate entity, but the bottom line is that a federal court has decided scanning of books for search purposes is not an infringement of copyright — or rather that this activity is covered under the principle of “fair use,” and therefore should be allowed to continue.
. . . .
One sign of how clearly the court believes this is that Judge Harold Baer’s decision was a summary judgement, meaning he didn’t think there was any point in even going to trial to argue the details of the case. As a post at the Copyright Librarian points out, “winning on summary judgment means the court agrees your arguments are a slam-dunk.” In his decision (which is embedded in full below), the judge says:
“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use… I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.”
The parts of the Hathi Trust case that make it distinct from Google’s battle with the Authors Guild have to do with the purposes for which the books were being scanned. For example, Judge Baer found that protecting old works from physical deterioration by scanning them was a “transformative use” (one of the four factors the courts take into account when deciding whether something should qualify as fair use), and that making digital books available for the use of visually impaired and other handicapped users was also an important element of the program.
Link to the rest at GigaOm and thanks to Phil for the tip.
Here is the entire Opinion and Order:
HathiTrust Opinion
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I find this really interesting. The argument makes sense to me, but I do wonder if, in use, the practicalities might twist the principles. That is, the scanned works intended for scholarly search would in time be available for commercial purchase.
Every scholar on earth, since the invention of the photocopier, has gone to scholarly libraries and there photocopied every single page of any book or article they needed to consult badly enough, and either couldn’t afford or get easily. That’s fair use. There are plenty of hand scanners on the market that attach nicely to laptops, and plenty of scholars were doing that in libraries, too, or paying library staff to do it. That’s fair use.
Hathi Trust is basically designed to eliminate wear and tear on both the books and the scholars, and to give those without a travel budget a chance to do real research. The part that’s a little iffy on ethics is restricting use to scholars inside the US, or inside the individual colleges, for many books.
But through Hathi Trust, I was able to read a book on St. Menas that’s been out of print since 1901, and to put an 8th century Nubian mss picture reproduction on my blog of St. Menas punishing an egg thief.
The book is not on Google Books because the copyright’s been claimed as theirs by various folks who don’t have copyright (the “reprint” publishers whose editions surfaced only after Google put out their scan), and by UK law it’s still in copyright because their terms are so hugely long. The book is not in any library near me, because it’s fairly rare. The manuscript has not been digitized by the British Library yet, so I couldn’t get it from there. Hathi Trust made it possible to see what another book was talking about, and allowed me to get access to a public domain book otherwise walled off from me. Otherwise, I would have been totally out of luck without taking off from work for two days, grovelling for rare book privileges at the library in question, and using a digital camera while the library staff worried about the effects of any flash on the book’s survival.
(Hathi thus also allowed me to give access to the book to UK folks, if only to the picture. And to excessively long copyright in this case, I say nanny nanny boo boo.)
Oh, and of course books of reproductions of manuscripts were in fact the digitalization/photocopy scholarly distribution format of their day. They cost something because it was expensive to do them, but they were often funded by the subscribers to a particular book, who were often the very researchers and libraries who intended to use their copies hard.