Sunday, November 17, 2013

Google Wins Book-scanning Case

Jeff John Roberts:

In a ruling (embedded below) issued Thursday morning in New York, US Circuit Judge Denny Chin said the book scanning amounted to fair use because it was “highly transformative” and because it didn’t harm the market for the original work.

It’s not clear to me why being transformative is a relevant legal factor. And it seems obvious that the second part is incorrect, unless you assume that no one would ever try to sell electronic licenses to the content.

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[P]laintiffs argue that Google Books will negatively impact the market for books and that Google's scans will serve as a "market replacement" for books. [The complaint] also argues that users could put in multiple searches, varying slightly the search terms, to access an entire book.

Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already—they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book.

@A Nonguy I agree about the market for physical books, but this does negatively impact the market for licensing the content (e.g. to a search engine or digital library).

It wouldn’t be worth it to do the searches manually, but it seems like the searches and reassembly of the snippets could be automated, like with DNA sequencing.

It seems likely that Google implemented rate limiting and other anti-download mechanism, so automatically reading out and assembling a full book is probably similarly cumbersome as just buying the book and scanning it yourself. Thus, I think it's fair to say that the service doesn't destroy the "people who want to read the book" market. Still, this destroys the market for licensing books for this kind of service, which doesn't currently exist.

Being transformative is relevant for fair use (i.e. the new work that uses the original work has to change enough so that the new work isn't a substitute for the original work, or something along those lines, I'm obviously not a lawyer), but I think the way transformation was used here is probably not what people originally envisioned when they came up with fair use laws.

Still, I'm glad this is the outcome. I think what Google is doing *should* be legal, regardless of whether it currently is. It doesn't harm publishers' current businesses (it probably even helps them a bit, because it makes it easier to find back catalog titles). And it's a great service for readers.

@Lukas Probably, although in a quick scan I did not see rate-limiting mentioned in the ruling, and we shouldn’t necessarily assume that whatever Google implemented works.

I tend to agree with you that this sort of thing should be legal. I just didn’t find the stated reasoning particularly convincing. Perhaps it’s because this isn’t legally clear-cut that it took so long to reach a verdict.

[…] kind of reminds me of that time Google scanned books with an opt-out instead of an […]

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