August 30, 2014

Google Seeks Dismissal of Authors Guild Case [UPDATED]

Arguing that authors have suffered no economic harm from the scanning of more than 15 million books, Google on Friday filed a motion seeking the dismissal of the long-running Authors Guild v. Google case.

The motion states that the digitized books, and the Google Books service that they enable, are “not a substitute for the [physical] books themselves—readers still must buy a book from a store or borrow it from a library to read it. Rather, Google Books is an important advance on the card-catalogue method of finding books,” that allows full-text searching. “Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.”

In addition, Google contends that a central tenent of the plaintiffs’ case—that Google required permission from the author of each book prior to scanning them and building its index—“fundamentally misunderstands…copyright laws.” The scans should be considered fair use, the company contends, stating five specific reasons.

First, Google argues that the project is “highly transformative” using works as raw material to create new information. Second, the company argues that “Google Books corpus contains works of every type, and thus the nature of the works does not weigh one way or the other on a classwide basis.”

Third, the company claims that it copied no more of the books than necessary to create a full-text searchable index, and that the snippets it displays from works that are still under copyright are no more than what is necessary for readers to determine whether a book might be of interest to them.

Fourth, Google argues that the project has actually benefited the plaintiffs as a group by helping the public locate and buy books.

“The Authors Guild agrees that many authors benefit when excerpts of their works are displayed to potential readers,” the motion states. “Plaintiffs point to no economic harm flowing directly from scanning of the work, creation of the index, or display of snippets of text. Instead, Plaintiffs speculate that if Google had not used their works without payment, they might have been able to charge for those uses, even though there is no licensing market in which authors are paid for the inclusion of books in indices or search results. The Second Circuit has rejected this circular argument, because ‘[b]y definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties.’”

And, finally, the company notes that while the Authors Guild has claimed that Google engaged in unauthorized distribution when it allowed libraries to keep their own digital copies of works that had been scanned at their libraries, these copies are also covered under fair use.

Google is seeking a summary judgment of noninfringement. Responses to the filing are due on Aug. 24, according to Reuters.

[UPDATE] In response to Google’s filing seeking dismissal of the case, the Author’s Guild has requested a summary judgment against Google for “unauthorized distribution of in-copyright books…Google’s unauthorized display of in-copyright books…Google’s defense of fair use…and the assessment of statutory damages of $750 per book for Google’s copyright infringement.”

The filing argues that “Google implemented its Library Project for commercial reasons to gain a competitive advantage over its competitors, particularly Microsoft and Amazon, which were also digitizing books, but with copyright owner permission. Simply stated, Google pub its commercial interests above the interests of copyright owners.”

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Matt Enis About Matt Enis

Matt Enis (menis@mediasourceinc.com; @matthewenis on Twitter) is Associate Editor, Technology for Library Journal.

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