Google’s Book Scan Project Still Under Fire Despite Legal Victory

Legal barriers for Google’s monumental book-scanning project have been removed in the United States, but the initiative remains controversial and would likely run afoul of European [corrected] copyright law, legal experts say.

Despite the US Supreme Court’s decision in April not to hear an appeal in the case against Google’s book-scanning initiative, Google’s publication of parts of over 20 million books for its search engine continues to stoke the ire of writers groups and other parties.

A main point of contention of the US-based Authors Guild, which was one of the original plaintiffs in the first lawsuit against Google over a decade ago, is that Google profits from the program without properly compensating the authors.

“The denial of review is further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector, not only with books, but across the spectrum of the arts,” Roxana Robinson, president of the Authors Guild, said in a statement.

Google began scanning millions of books from major libraries and institutions without copyright holders’ permission over 10 years ago. The Authors Guild and the Association of American Publishers claimed in its original lawsuit that Google Books, which represents the world’s most ambitious book-scanning project to date, violated copyright laws and other related protections.

Under the terms of the October 2008 settlement with the Association of American Publishers, Google agreed to pay $125 million and to compensate right holders 63 percent of revenues earned on sales of millions of books it has scanned as part of the commercial venture. However, the Authors Guild continued to file suits until the case worked its way up through the courts and ended with the Supreme Court’s decision not to hear the case in April.

Proponents say that Google Books helps authors since potential book buyers can discover published texts by instantly accessing information about them around the world with an Internet connection. Many of the titles are out of print, and thanks to Google, can interest potential readers to buy the book while protecting the authors’ copyright ownership, proponents say.

“Google Books gives readers a dramatically new way to find books of interest,” Google wrote in its Supreme Court brief. “By formulating their own text queries and reviewing search results, users can identify, determine the relevance of and locate books they might otherwise never have found.”

“Google Books does not supersede the books themselves or replace buying or borrowing them,” Google stated in its brief. “It does not significantly affect the market for books or their protected derivatives (except to boost the market by helping readers find them).” [Note: Google could not be reached for comment for this story.]

Unlike the controversial lawsuits that the world’s largest media groups initiated against alleged individual digital file sharers for copyright infringement, Google, as one of the largest companies worldwide in market value, is the financially powerful defendant accused of illegally sharing copyright-protected content. However, some say that in the case of Google Books, that it is the Authors Guild, which is albeit less financially about to fund costly legal fees, that should instead embrace new ways of digital distribution that help to promote creativity instead of resorting to litigation to maintain control over copyright-protected books.

“Google is doing what it always does: make the world’s information searchable. That adds value by making it possible for readers to find the information in the first place,” James Grimmelmann, professor of law at the University of Maryland where he is also director of the Intellectual Property Program, told Intellectual Property Watch. “The authors who sued Google should have been thanking it for helping them reach new audiences.”

However, instead of helping authors, opponents claim that the availability of the books online could lower sales of the scanned books, with up to 20 percent of some books’ content made available. Some potential buyers could be inclined to find specific information they seek by using Google Book’s search online without having to pay for the book.

“Authors should be paid,” Nicolas Maubert, a Paris-based attorney said, who specialises in IP, media, and telecommunications law, told Intellectual Property Watch. “I don’t buy the argument when people say Google has lost money in this venture. At the end of the day, Google is getting richer and richer by being able to do this project free of charge.”

A critical legal issue is the definition of “fair use” under US copyright law and how it balances the public benefit of copyright holders versus the overall public good. The US circuit court that heard the last case against Google determined that Google’s booking-scanning project benefited the general public in a way that met the criteria of fair use.

“The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption,” Judge Pierre Leval wrote in his now famous opinion. “ … Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

A key point Judge Leval also makes is that the criterion of “transformative fair use” is met since “scanning books to make an index of them is a transformatively different purpose than selling books,” Grimmelmann told Intellectual Property Watch. “The Second Circuit’s opinion was so careful, clearly reasoned, and legally persuasive that there was no need for the Supreme Court to step in.”

However, Google Books would very likely face legal hurdles if it attempted to scan books and publish parts of them online outside of the United States. In a European Union country, for example, Google would face a greater legal burden to convince courts that its book-scanning project would not run counter to copyright law. At best, Google’s hopes to prevail would remain murky at best, although the law could change, Maubert said.

Proposals were made last year by Member of European Parliament Julia Reda, for example, to update the statutes that the EC first mandated in 2001, which could have leaned more in favour of a project such as Google Books. However, her proposals were not adopted. “Reda was in favour of liberalizing the exceptions to copyright monopoly but her recommendations were amended because she had gone too far in authors’ minds,” Maubert said.

There are thus still few exceptions to legally mandated copyright protection that would allow Google to add books from European libraries and institutions to Google Books, “even though the EC has loosened its interpretation a bit,” Maubert said.

“I believe, however,” said Maubert, “that Google’s initiative will be on people’s minds when they decide on the final text of the new directive, but that won’t happen anytime soon as I understand.”

 

Image Credits: Google Inc.