Google Challenges Fair Use of Copyrighted Materials

by Matt Klassen on December 17, 2013

It was more than eight years ago that the Authors Guild filed a class action lawsuit against Google, claiming the search engine giant’s practice of scanning books onto the Internet violated authors’ copyrights. The damning critique of the slow moving wheels of justice aside, the decision about this case was recently delivered, and it came in Google’s favour.

Such a decision could have far-reaching effects for how copyrighted content is made available on the Internet and what rights and controls creators have over their own content. As E-Commerce Times writer Peter S. Vogel explains, “The larger impact for Internet users seems to be that search engines have received a legal blessing to make digital copies of materials owned by others, albeit for limited purposes, in spite of the apparent copyright infringement.”

As a former university instructor and one who has written a great deal of original content I sympathize with the Authors Guild, as clearly the courts decision to allow Google to scan complete copies of written works onto the Internet without the authors’ permission has rewritten the fair use laws, giving Google just one more way to make money off advertising while giving nothing back to those who provide the content.

As I mentioned, Google was recently able to win the case levied against it by the Author’s Guild by arguing for fair use of the material, a doctrine generally reserved for nonprofit use by academic institutions, the press, and most importantly, libraries.

But even so, copyright laws do not give libraries the right to make complete copies of books—in fact, the percentage of a book that is legally allowed to be copied is well defined—and libraries do not hold any copyrights to the materials they make available. As part of the Google Books project, however, various libraries offered up more than 20 million volumes for Google to scan and digitize in full, Google then returning the digitized copies back to the contributing library, all without receiving author permission.

One might wonder how Google could ever win such a case against the Authors Guild, since it’s clear it has run roughshod over authors’ legally granted interests in protecting their own works. But it seems given that Google—a distinctly for-profit entity—provides only snippets of any given work in its search results, and the fact that its advertising driven revenue stream isn’t directly related to people searching for books that Google, in this matter, qualifies under the fair use doctrine, as it allows people to search for the books for free.

Last month U.S. Circuit Judge Denny Chin of the Second Circuit granted Google’s motion for summary judgment, including the following ruling: Google is entitled to summary judgment with respect to plaintiffs’ claims based on the copies of scanned books made available to libraries. Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Google’s actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.

To summarize, the judge awarded in Google’s favour because it’s providing a free service to the libraries involved, digitizing books libraries already own. Of course such a decision seems to ignore the growing realization that Google will always find a way to make money off of its ‘free’ services, and however that money is linked to copyrighted materials, you can be sure that those providing content for Google’s new online empire won’t see one red cent.

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Written by: Matt Klassen. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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