From the Tech Desk
What the Google Books Ruling Means for Publishing
After more than 10 years of court battles and ambiguity, we finally have our answer. Google Books—and more specifically, the platform's ability to offer samples of scanned books for free online—is legal. The decision was handed down by a three-judge Second Circuit panel on Friday, October 16th, stating that, yes, Google's use of copyrighted material for the Google Books project falls under fair use. Thus ends a decade-long Federal court battle between the Authors Guild and Google. This Second Circuit ruling came in response to an appeal from the Authors Guild, who went back to the drawing board after Google Books was originally ruled to be operating in the realm of fair use back in 2013.
The question now is this: what implications, both positive and negative, could the legality of Google Books have for the publishing industry?
On first blush, it's easy to view the Google Books ruling as purely bad news for the publishing world. The ruling clarifies somewhat where the boundaries of fair use lie for printed, copyrighted material, and for the most part, those boundaries are a bit looser than many of us would have initially thought. Indeed, when you first read about the concept of Google Books—scanning academic libraries and making snippets of books searchable and readable to internet users, free of charge—sounds like piracy and file sharing all in one. How is this not copyright infringement, many authors and publishers have asked over the years? It was hardly surprising when a plaintiff—the Authors Guild—came out of the woodwork in 2004 to sue Google over the newly established Google Books platform.
The party line from Federal judges—both in the initial ruling and in last month's appeal decision—is that the Google Books scanning program qualifies as "transformative use." Interestingly, the recent appeal ruling involved Judge Pierre Leval, the same judge who initially proposed the idea of a fair use standard in a Harvard Law Review article, published all the way back in 1990. At the time, Leval said that transformative uses could include "criticizing the quoted work, exposing the character of the original author, providing a fact, or summarizing an idea argued in the original in order to defend or rebut it." Concepts like parody and symbolism were also included in Leval's definition of transformative use, as was classroom usage.
On the subject of the Google Books trial, Leval says that "giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge." Because Google Books only offers limited portions of scanned texts for free public display, Leval argues that those free snippets "do not provide a significant market substitute for the protected aspects of the originals." In fact, Google Books could actually be helping authors and publishers rather than hurting them, because it makes scanned texts highly searchable. With Google Books, a person looking for a specific subject, argument, or type of content could feasibly use the search function to find useful texts and then purchase the full versions. In college, I personally used Google Books to find relevant sources for papers I was writing, and then went to the library to see if I could find the originals.
In other words, while authors might feel they are being forced into the Google Books age by the recent Second Circuit appeal decision, the fact that authors are being pushed to embrace the medium could actually prove to be a good thing. One argument among the publishing community has been that, if Google Books is going to display any portion of a book online for free user access, then authors and publishers should be compensated based on a per-page-view model or some similar system.
However, since Google Books displays both free scans of books and buttons directing readers to where they can buy those books in print or eBook formats, it makes more sense to let the samples and snippets remain free. In the music world, selling a CD earns more revenue for an artist than selling a digital download of an album, which in turn is worth more than a person streaming that album on Spotify or Apple Music. Similarly, an author stands to make more money from eBook or print book sales through Google Books than they ever could from simple web traffic. Google Books, in other words, can and should be viewed by authors and publishers as a method for book marketing.
It will probably still take awhile for authors to fully embrace Google Books—though a more comprehensive library of titles and book samples on the service would ultimately be a positive change for all parties. Some groups are excited by the recent Federal court ruling, as discussed in a top-notch Atlantic article on the subject. In particular, librarians and other non-profit organizations are relieved to learn of Google Books' legality, not only because the service makes it easier for readers to find useful texts, but also because it creates more concrete boundaries for fair use in the case of written works.
Craig Manning is currently studying English and Music at Western Michigan University. In addition to writing for IndependentPublisher.com, he maintains a pair of entertainment blogs, interns at the Traverse City Business News, and writes for Rockfreaks.net and his college newspaper. He welcomes comments or questions concerning his articles via email, at firstname.lastname@example.org.