Authors Guild, Inc. v. Google, Inc.
Authors Guild v. Google 804 F.3d 202 (2nd Cir. 2015) was a copyright case heard in federal court for the Southern District of New York, and then the Second Circuit Court of Appeals between 2005 and 2015. It concerned fair use in copyright law and the transformation of printed copyrighted books into an online searchable database through scanning and digitization. It centered on the legality of the Google Book Search (originally named as Google Print) Library Partner project that had been launched in 2003.
Authors Guild, Inc. v. Google, Inc.
The Authors Guild Inc., et al. v. Google, Inc.
October 16, 2015 (2d Circuit); November 14, 2013 (SDNY)
804 F.3d 202
Denny Chin (SDNY); Pierre N. Leval, José A. Cabranes, Barrington Daniels Parker, Jr. (2d Cir.)
Though there was general agreement that Google's attempt to digitize books through scanning and computer-aided recognition for searching online was seen as a transformative step for libraries, many authors and publishers had expressed concern that Google had not sought their permission to make scans of the books still under copyright and offered them to users. Two separate lawsuits, including one from three authors represented by the Authors Guild and another by Association of American Publishers, were filed in 2005 charging Google with copyright infringement. Google worked with the litigants in both suits to develop a settlement agreement (the Google Book Search Settlement Agreement) that would have allowed it to continue the program though paying out for works it had previously scanned, creating a revenue program for future books that were part of the search engine, and allowing authors and publishers to opt out. The settlement received much criticism as it also applied to all books worldwide, including works that may have been out of print but still under copyright, and may have violated antitrust aspects given Google's dominant position within the Internet industry. A reworked proposal to address some of these concerns was met with similar criticism, and ultimately the settlement was rejected by 2011, allowing the two lawsuits to be joined for a combined trial.
In late 2013, after the class action status was challenged, the District Court granted summary judgement in favor of Google, dismissing the lawsuit and affirming the Google Books project met all legal requirements for fair use. The Second Circuit Court of Appeal upheld the District Court's summary judgement in October 2015, ruling Google's "project provides a public service without violating intellectual property law."[1] The U.S. Supreme Court subsequently denied a petition to hear the case.[2]
Background[edit]
Google launched its Google Book Search in 2002, initially named as its Google Print service. At its start, books were manually scanned page by page, using optical character recognition (OCR) to create a digital version of their text which then was incorporated into Google's search capabilities. As the project grew, Google expanded its capabilities to increase the rate at which books could be scanned and entered into its database, increasing the rate up to 6,000 pages per hour per scanning station, and build out a number of scanning facilities to enable rapid scanning of books brought to them from local sources.[3] End users of the search engine could then search through the books to find words and phrases as they would with web sites, along with other advanced search features. Because of the possibility of OCR errors, users are shown the scanned pages rather than the digital text to verify the text for themselves. The project was considered a major transformative work for information sciences at the time.[4]
Initially, Google only worked with books in the public domain. In December 2004, Google announced it had established its Library Partnership with the libraries at Stanford, Harvard, Oxford, the University of Michigan and the New York Public Library to obtain works both in the public domain as well as limited works in copyright from Stanford, Harvard, and the University of Michigan.[4] For works still under copyright, Google scanned and entered the whole work into their searchable database, but only provided "snippet views" of the scanned pages in search results to users. This had mirrored a similar approach Amazon had taken for book previews on its catalog pages.[5] A separate Partner Program also launched in 2004 allowed commercial publishers to submit books into the Google Books project, which would be searchable with snippet results (or more extensive results if the partner desired) and which users could purchase as eBooks through Google, if the partner desired.[6]
Authors and publishers began to argue that Google's Library Partner project, despite the limitations on what results they provided to users, violated copyrights as they were not asked ahead of time by Google to place scans of their books online. By August 2005, Google stated they would stop scanning in books until November 2005 as to give authors and publisher the opportunity to opt their books out of the program.[7]
The publishing industry and writers' groups criticized the project's inclusion of snippets of copyrighted works as infringement. Despite Google taking measures to provide full text of only works in public domain, and providing only a searchable summary online for books still under copyright protection, publishers maintain that Google has no right to copy full text of books with copyrights and save them, in large amounts, into its own database.[8]
Inception of the lawsuit[edit]
In September 2005, three authors as well as the Authors Guild of America filed a class action lawsuit against Google and Stanford, Harvard, and the University of Michigan libraries over the Google Print project, citing "massive copyright infringement".[7] The complaint asserted that Google had not sought approval to make scans of the copyrighted books, and asked for an injunction to stop Google from scanning any copyrighted works during the lawsuit.[7] Google countered that its project represented a fair use and is the digital age equivalent of a card catalog with every word in the publication indexed.[7] A month later, the Association of American Publishers, representing five publishers – McGraw-Hill, Pearson Education, Penguin Group, Simon & Schuster and John Wiley & Sons – filed a similar suit against Google and the libraries on a similar complaint.[9] Both cases were heard in the United States District Court for the Southern District of New York initially under Judge John E. Sprizzo.
Settlement attempts[edit]
Impact[edit]
Authors Guild, Inc. v. HathiTrust (2014) was a following case related to HathiTrust, a project by the libraries of the Big Ten Academic Alliance and the University of California systems that combined their digital library collections with those of Google's Book Search. The HathiTrust case differed in two primary factors which were raised by the plaintiffs: that for viewers with disabilities, they could view the scanned text through a screen reader to make it easier to read, and offering to print out the scans as replacement copies for members of the universities if they could verify their original copies were lost or damaged. Both uses were deemed also to be fair use by the Second Circuit.
The subject of the copyright of orphan works – works that may still be under copyright but with no identifiable rights holder – was a significant point of debate after both this and HathiTrust. Normally, libraries have been hesitant to loan digital copies of orphaned works as libraries may be liable for copyright violations should the copyright owner step forward to claim ownership. The United States Copyright Office, spurred by the question of digitization for book preservation, wrote a guidance paper in 2015 on the matter of orphaned works stating that those making digital copies of orphan works should not be liable for any copyright violations if they have made a good faith effort to locate the original authors, in a manner similar to the unpassed Shawn Bentley Orphan Works Act of 2008. The paper recommended that such legislation be passed.[64]
The ruling, finding Google's approach to be fair use, alongside Authors Guild, Inc. v. HathiTrust has been used as the basis of controlled digital lending (CDL). As argued under the CDL model, a library that owns a physical copy of a book has rights under both fair use (as established under this case) and the first-sale doctrine to "lend" an electronic scanned copy of that book with appropriate digital rights management to a user as if they were lending out the physical book, thus allowing libraries to serve remote users.[65] The Internet Archive's Open Library project used the CDL concept to justify its system, but this has come under criticism from authors and publishers of copyrighted books within the Open Library.[66] The CDL concept has not been tested in courts, and a lawsuit against the Open Library for copyright infringement was initiated by four publishers in June 2020.[67] This case, Hachette v. Internet Archive, was heard in the Southern District of New York. On March 25, 2023, the court ruled against the Internet Archive, which plans on appealing.[68]