July 30, 2012
Google Files It's Brief For Summary Judgment in Scanning Case
Google filed its memorandum of law supporting its motion for summary judgment in the litigation with the Authors Guild over the Google book scanning project. Google’s attorneys make some interesting points. Among them, Google’s scanning project is a transformative work and does not substitute for the original book. The transformation takes place by converting the text into a searchable index for benefit to the public. The index becomes a discovery tool that helps a searcher find relevant materials with the display of a snippet amounting to 0.0075% or less of the work. Google uses several examples of individuals who are featured in multiple works but never show up in the metadata contained in bibliographic collections.
Google states further that the indexing project has not caused any lost sales to authors as no market exists for comprehensive word indexes such as the one Google created. Google claims it expands the market for books by pointing searchers to sources where the work may be purchased. The fact that Google is a commercial entity does not weigh against it as it places no ads on “about the book” screens. Any ads that do appear on other screens do not affect the market for the books in any event.
Google describes the Guild as inconsistent. It points to the Guilds own statements encouraging its members to offer the introductory chapter of their works on the Internet for free as a method of discovery. Google also cites the Amazon program where prospective purchasers can see parts of the text. The latter is licensed without payment by Amazon, and Google has a similar program. The existence of a license, however, does not affect the determination of fair use.
There is even a little bit for the libraries in the HathiTrust litigation. Google notes that the books are secured on its servers. Libraries may only download encrypted copies of works scanned from their own collections even if a duplicate exists between collections. Google’s use of the text to generate an index has never resulted in an unauthorized distribution of a work to the general public. Snippet view is protected to the point where anyone can craft searches to collect snippets that potentially would recreate the work.
The memorandum tracks each of the four statutory guidelines the courts use to determine fair use and makes strong arguments in favor of Google’s position, backing it up with case citations for support. I think from the Guild’s perspective this comes down to an issue of control as to how and when authors make their works available, but for that pesky fair use that Google claims. The Guild obviously wants fair use to be as limited as possible. I would assume that the Guild’s response will be as strong in opposition to Google’s claim. I’ll report on that when I see a copy. paidContent has commentary on the brief, including an embedded copy of the document via Scribd. [MG]