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17 Nov 2013
Today the long running Authors Guild vs. Google case ended for all practical purposes. Judge Denny Chin, who has been patiently overseeing the case for nearly a decade, issued a short, clear summary judgement ruling in which he agreed that the Guild had no credible arguments and granted Google's motion to dismiss.
The Guild's argument has never been much more than Google is scanning all these books and not paying us, and they can't do that. Google has had a variety of counter arguments, but the most important one, that the scanning is fair use, had not until today been addressed by a court. First, Google and the Guild negotiated a settlement in which Google would pay royalties to authors if they were known, and an escrow fund that eventually went to the Guild otherwise. That was too obviously self-serving, so the settlement was modified in various minor ways to send the money to more appropriate places until Judge Chin rejected it, properly saying that it was not in the public interest since it would in practice give Google a monopoly on book scanning and intruded in the "orphan works" area that properly is up to Congress to address.
Then the two parties went back into court, and after a couple of years of skirmishing about whether the case should be a class action or just on behalf of writers who were Guild's members, the court finally addressed the fair use claim.
The Guild still had little more than their original argument that scanning without permission is illegal, and that Google is doing it for commercial purposes which argues against fair use, along with some other rather bizarre ones like the scan database is very large and someone might steal it so it must be destroyed first. (I wish I were making that last one up, but I'm not.)
Google argued that the scans were not a substitute for the books, since they went to considerable lengths to make it impossible to retrieve more than a fraction of a book through the snippet search, and they provide links to multiple online stores for users to buy books that are still in print. Also, the scans enabled new uses such as data mining of text. The judge cited this with approval, noting an academic study that data mined the scans to find when people switched from saying "the United States are" to "the United States is" when referring to the country. Several persuasive supporters filed amicus briefs, such as a group of academic authors led by Pamela Samuelson who argued that they write to spread knowledge more than to make money, and they think the scans are great. The American Library Association says that the scans help their member libraries identify books for their collections, and which books to buy. Advocates for the blind and disabled pointed out how great it was to have full texts of books that could be used for tactile or audible assistive systems.
The judge considered all these points in the context of the deliberately vague statutory language about what constitutes fair use, and decided that Google Books absolutely is, so Google wins and the Guild loses. Period.
The Guild, which has pretty much made this suit and the related Hathitrust suit against the libraries that provided the books its reason for being in recent years, says they'll appeal, but I can't imagine how they could possibly prevail. Judge Chin is a very well known and highly respected judge, and in fact was appointed to the Second Circuit, the very court that will hear an appeal, while the case was going on. (He of course won't be part of the review panel.) The only basis on which he could be overturned is if the Circuit thinks he got the law wrong, which isn't going to happen. The Second Circuit will say no, the Supreme Court won't accept it, and then it'll really be over, probably in another year.
Also see Paul Alan Levy's Public Citizen blog entry, in which he notes that this decision is much better for the public than a settlement, since it gives a fair use road map for future book scanning projects, and Joe Mullins' summary at Ars Technica.
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