Google wins scanning battle

...It’s perhaps ironic that a legal case that once transfixed the publishing world and the tech industry has become an afterthought for many, including Google whose co-founder Sergey Brin enthused about a “Library to Last Forever” in a 2009 New York Times op-ed. 

But even though the controversy surrounding the scanning project has largely passed, the digital corpus amassed by Google continues to have big implications for libraries and scholars. As Judge Leval notes in the ruling, which cites a variety of scholarly articles: 

“The search engine also makes possible new forms of research, known as “text mining” and “data mining.” Google’s “ngrams” research tool draws on the Google Library Project corpus to furnish statistical information to Internet users about the frequency of word and phrase usage over centuries,” says the decision. 

An equally significant legacy of the legal case, however, may be what it has meant for fair use at a time when courts, companies and creators are struggling to define copyright law in the digital age. 

As the Friday ruling makes clear, it is actually only two of the four “fair use” factors (“purpose of the use” and effect on market value”) that primarily determine when a work can and can’t be used without permission. 

In siding with Google, Judge Leval stressed how the purpose for which Google was using the books – making them into a limited, searchable database – was “highly transformative” and not intended to simply reproduce reproduce the text. He also rejected notions that making snippets of the book available to the public would undercut sales of the originals, or that the scanned books undercut authors’ and publishers’ rights to “derivative works” (a theory that lawyers for the publishing industry have long expounded).

“We conclude that the snippet function does not give searchers access to effectively competing substitutes. Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue,” wrote the court. 

It is perhaps fitting that the final word in the Google Books case appears likely go to Judge Leval since he is well known in legal circles for an influential 1990 academic article on “transformative” works. The article was cited in the milestone Supreme Court case about a rap parody of the song “Pretty Woman,” and has since become a touchstone for current understandings of fair use...

A copy of the decision is here.