August 2, 2012
EFF And Library Associations File Amicus Brief in Google Book Scanning Case
The Electronic Frontier Foundation (EFF) along with the American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL) filed a joint amicus brief yesterday supporting Google’s motion for summary judgment in the book scanning case. Google filed its motion a week ago. The brief, by its terms, does not duplicate Google’s arguments, though it amplifies some of them by describing the utility of Google Book Search to libraries and the general public.
The application to fair use comes in the form of scanning to create an index that displays nothing but snippets. This is described as a transformative use of the work consistent with existing legal precedent. The parties cite the Perfect 10, Inc. v. Amazon.com, Inc. case (508 F.3d 1146 (9th Cir. 2007) in particular where Google was found not to be liable for creating thumbnails of copyrighted images which it used in its search results. The court there called the activity transformative with social benefit. The analogy is the need to digitize the book to create the word index used to serve up snippets in the results is also transformative under fair use analysis.
The library associations use particular examples where scholars, librarians, and others have used Google Book Search to locate obscure texts that patrons have either bought or acquired through interlibrary loan. Other search mechanisms would not have offered the same results. Another social benefit described in the brief is the ability to check citations and bibliographic information accurately and faster than traditional means. These capabilities are especially useful in an era of tighter library budgets. If the Author’s Guild thinks there is an indexing market out there, the brief emphatically states that libraries would not likely participate in it due to anticipated costs.
The brief argues further that the Guild entered into settlement talks and could have asked the Court to on numerous occasions to stop Google from scanning. This brings up an interesting point. The rejected settlement was an agreement between the Guild, publishers, and Google to not only allow scanning of books, but to create a store to sell them as well. Creating a store is not the point of this litigation unless the parties come up with another settlement they propose. This case is about the ability of Google to scan and serve up snippets. The fair use analysis proposed by Google and amici is far from a stretch in that limited context.