A lawsuit can run on for so long that, even if major issues are still at stake, it can seem dated and even inconsequential by the time it’s resolved. Such is the case with Authors Guild v. Google, which likely came to a conclusion on Friday, more than 10 years after it began. The Second Circuit sided with Google, ruling that the company’s program to scan millions of books, including those still in copyright, was legal.
So much has changed on the Internet, in libraries, and with books in the decade since the Authors Guild first filed suit. In 2005, Google was a relatively young search engine—it had only gone public the previous year—looking to expand its horizon beyond the web. Now Google is part of a conglomerate named Alphabet, and Google Books seems very much like an early, vestigial effort among Alphabet’s larger body of projects, which includes higher-profile ventures like self-driving cars.
Ten years ago there were no Kindles, iPads, or postcard-sized smartphones to read on. Now the growth of e-reading is unmistakable. In 2011, 11 percent of Americans read an ebook; in 2014, 27 percent did. (In the same period, the number of Americans reading a print book fell, from 71 percent to 63 percent.) In the past 12 months, Americans read 120 million ebooks on just one app used by public libraries—an increase of 20 percent from the year before. And while big publishers may be seeing their ebook sales plateau, self-published authors and indie presses—many of them selling directly to readers through Amazon—continue to gain market share, while charging a fraction of what print books cost. With so much of the landscape for digital books forever altered, what does Friday’s decision mean for readers, writers, libraries, and the public?
As Judge Pierre Leval emphasized throughout his ruling for the Appellate Court, as audacious as Google Books appeared at its inception, it seems less monumental today. Although Google did tip entire library shelves into the scanner without regard for copyright status—triggering an unsurprising revolt from authors and publishers—the tech giant only shows small “snippets” of in-copyright works. The full digitized books are walled-off, making only certain uses possible. Researchers can fact-check using Google Books, or they can examine the number of times particular words and phrases are mentioned in the corpus each year, but they can’t really read Google’s online version of most volumes.
This makes Google Books a wonderful tool—a transformative one, in the eyes of the court, and thus non-infringing—but it also means that the service has ended up being more tantalizing than fulfilling. What Google has created is less a universal library than a tinted window into one.
It was not always going to be this way. A proposed 2011 settlement between Google and its antagonists would have laid the groundwork for paid access to all of the scanned books. Yet many book lovers viewed such a settlement (rightly, in my opinion) as creating an undesirable, near-monopolistic online book outlet. The judge presiding over the case, Denny Chin, agreed and rejected it, ruling for the Southern District of New York that Google Books, as is, was a fair use. The Second Circuit has unanimously concurred.
It’s now a good time to think about more heterogeneous models and markets for ebooks, including in the discussion not only the Googles and Amazons of the world, but also libraries, which find existing channels and platforms for ebooks less than ideal.
This matches larger trends in digital librarianship. As Google has shifted its attention away from books, nonprofits have stepped in to ensure access to our shared culture. The Digital Public Library of America, which I direct, brings together the digitized contents of America’s libraries, archives, and museums. HathiTrust—which was also unsuccessfully sued by the Author Guild—was established by universities to preserve digital copies of their holdings for the long term. The Internet Archive also has scanning centers in multiple locations, and many smaller institutions have started their own digitization programs.
For those organizations to provide greater access to digitized print books, the United States will have to solve thorny issues about the status of much of what is held in its cultural-heritage institutions. Works from before 1923 are in the public domain, and recent volumes are clearly under copyright. But a large percentage of books between the distant and recent past are in a grey territory where their status is foggy. Their copyright may not have been renewed, and their publishers and authors are long gone. With imperfect records we can’t be sure what we can do with these millions of books.
Fortunately, in the U.S., we can also appeal to fair use, an important principle that makes the American system of copyright different from most other countries. As the length of copyright terms has been repeatedly extended, fair use acts as a counterbalance, providing exceptions for using copyrighted materials in ways that benefit society without destroying the market for books. Authors also benefit from fair use, by being able to quote, parody, and build upon copyrighted works.
However, like the status of so many books on our libraries’ shelves, the nature of fair use has often been unclear. Judges are asked to balance four fairly abstract factors in deciding whether a use is fair, including how creative works are being repurposed and to what extent, and how the market for the original might be impacted.
In a narrow sense, the decade-long litigation over Google Books ended with a judgment about the balance of these factors for a specific project: a large company scanning and indexing the contents of millions of volumes.
But critically, and with greater and lasting impact, the case also helped to clarify fair use in general. Authors Guild v. Google stands to make fair use much more muscular. Because many institutions want to avoid legal and financial risk, many possible uses that the courts would find fair—including a number of non-commercial, educational uses—are simply never attempted. A clearer fair-use principle, with stronger support from the courts, will make libraries and similar organizations more confident about pursuing forms of broader digital access.
After all, as Judge Leval emphasized: “While authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public.” It may have taken 10 years, but that crucial reminder of copyright’s goal is anything but dated and inconsequential. It will serve all of us as we think about how books are written, read, and preserved for future generations.
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