When you are as powerful as Google is and have deep pockets, expect lawsuits. Two days ago, yet another legal attempt at getting some of Google’s money - in this case a mere $176 million of it - was thwarted when a French court dismissed a copyright lawsuit against Google’s You Tube video sharing platform. Another win for Google!
There’s not much time for celebration these days for Google; though, lawyers are lined up, all trying to take a crack at getting a piece of the online search behemoth’s money pie. As long as there is plenty of money to go around, the revolving lawsuit door will continue to swing.
Yesterday, just two days after the win in the French courts, Google received what some are calling a major procedural setback in a book scanning lawsuit that has been going on for seven years. According to Judge Dennis Chin, the Authors Guild and a trade organization representing various photographic entities will be permitted to represent their clients in a class action lawsuit against Google instead of having to sue Google individually. Naturally, being able to pool money and legal resources from all concerned parties makes it much easier to stand a fighting chance against Google’s team of lawyers.
For those unfamiliar with the case, Google was sued in September of 2005 by the Authors Guild and four individual authors for “massive copyright infringement” because Google scanned and digitally copied substantial parts of various libraries’ book collections under its Google Library program. In 2004, under agreements made with Stanford University, Harvard University, the University of Oxford and the University of Michigan as well as the New York Public Library, Google created digital copies of large portions of those institutions' literature, scanning more than 12 million books. Subsequently, Google delivered digital copies to those libraries, created an electronic database of the books and made text available online for searching.
Authors Guild president, Nick Taylor, believes this is a “clear and brazen violation of copyright law,” adding, “it’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.” Google’s position is that they are only making limited portions of the text of various works available – up to three “snippets” of an eighth of a page from works containing the searched for text – and that this small amount of viewable text is protected under the Fair Use doctrine, as outlined in the Copyright Act of 1976.
Under the Copyright Act, “fair use” permits limited use of copyrighted materials without the author’s approval for things such as commentary, teaching, news reporting and library archiving. In order to determine fair use, the courts use a balancing test consisting of four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Purpose and character of use:
This first balancing factor is considered one of the more important of the four. Under the “purpose and character of use” factor, I’m sure Google will assert that they have a right to publish snippets of literature because they are doing it for educational purposes. The Authors Guild will argue that because Google is a commercial enterprise, anything they make available online serves their commercial interests of providing relevant search results and that they can sell advertising next to those results. They will also assert that Google has not transformed the work in any way, offering a new insight or commentary to it.
The first point, to me, would be like saying a newspaper cannot have any advertising if they have a quote from a published piece anywhere in a news story. As for the second point, although Google has not transformed the work in any way, they are not selling it for profit, either. It is my opinion that the Authors Guild position is a weak one here and that Google will win this test.
Nature of the copyrighted work:
This is a rather ambiguous portion of the balancing test which factors in whether the disputed work was previously published and whether it is fiction or non-fiction. Words written about historical facts are generally seen as fair game whereas fictional copy is not. Also, because an author has a right to control the first appearance of anything he or she has written, the courts favor the author more for unpublished works than ones that have already been published.
In all likelihood, this will be the hardest factor of the balancing test for Google to win – especially in relation to fictional works. Clearly the works have already been published, so that is not an issue here. That said, this is only one of four factors in the balancing test and a minor one, at that.
The substantiality of the portion used:
This factor in the balancing test deals with the proportion of the work being used and the significance of that portion. Generally speaking, the smaller percentage of the overall piece that is used, the more likely it will be seen as fair use. Exceptions to this occur when the court finds that the portion being used is the “heart” of the work. For example, it may be fine to use a few paragraphs from a magazine article but not if those few paragraphs were the “scoop” of the entire piece. The courts have already found that thumbnails or low resolution versions of an image are acceptable under “fair use” when used for demonstrative or educational purposes.
It is not likely that the Authors Guild has much of a chance at winning this one. When only an eighth of a page of an entire book is all Google is showing in a search result, it is unlikely that this will be seen as a “substantial portion.” As far as the amount being shown being the “heart” of the piece is concerned, the “heart” would likely have already been known by the searcher who entered the words.
Effect on the work’s value:
The final piece in the balancing test is whether the original author is likely to incur a financial loss because of the infringing use of their material and it is generally considered to be the most important of the four factors. The burden of proof here is on the plaintiff to show significant financial harm was done by allowing widespread use of their material. Simply put, the plaintiff needs to prove that actions of the defendant alone have significantly affected their current income or income they could potentially receive in the future.
This is going to be the most difficult of the four for those suing Google to prove. I would imagine, if anything, the blurbs of text that Google is providing could inspire people to purchase the work as a whole. It is also worth noting that since this literature is already freely available in its entirety at public libraries, an internet search revealing a few paragraphs certainly is not harming the potential value of the pieces.
Who will win?
It should be noted that no single factor alone is enough to merit a ruling one way or the other and that some factors weigh more heavily than others in determining an outcome. All four factors must be weighed and the decision ultimately is made when the scale tips clearly toward the plaintiff or the defendant.
Those reading this that are rooting against Google because they think they need to be taken down a notch need to consider how this ruling could also affect more than just Google. Clips from movies or songs offered on websites such as Amazon are also subject to this same scrutiny. Imagine the public outcry if those things were no longer available online.
Not to worry; I think Google is in pretty good shape here (again).
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