BY Michael Yacubian

Anyone who has conducted research within the last 10 years knows the invaluable resource that Google can provide in finding source material. All one needs is a topic and a few keywords and the information is a click away. One of Google’s distinctive features that separates it from other search engines is its implementation of millions of digital book samples that can be searched word for word. This resource, now known as “Google Books” was implemented in 2004 when Google announced agreements with several major research libraries to digitally copy books in their collections.

Since then Google has scanned more than twenty million books. In its agreement with research libraries, Google has delivered digital copies to participating libraries, created this electronic database of books, and made text available for online searching through the use of “snippets.”

The problem however, is that many of the books scanned by Google were under copyright, and Google did not obtain permission from the copyright holders for these usages of their copyrighted works.

The snippets that Google provides in a search are only samples of the larger work, and in “snippet view” Google divides each page into eighths – each of which is a “snippet,” a verbatim excerpt. This may seem harmless, but authors are still concerned that their market viability will decrease with such technology that does not provide for any fee. In fact, each search by users of Google’s free application generates three snippets and by performing multiple searches using different search terms, a single user may view far more than three snippets, as different searches can return different snippets.

Here in lies the problem, and opponents to the technology believe that in providing users with free samples of these copyrighted works infringes the author’s right of ownership.

The battle between Google Books and the Authors Guild has waged for 8 years, with numerous decisions going each way. However, after almost a decade, Google’s principal defense of fair use under §107 of the Copyright Act, 17 U.S.C. §107 has proven successful. The Judge in the deciding decision, New York U.S. Circuit Judge Denny Chin, said the book scanning amounted to fair use because it was “highly transformative” and did not harm the market for the original work.

The doctrine permits the fair use of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” See 17 U.S.C § 107. The courts argue that it does just that.

The ruling has been praised by many, such as the Association of Research Libraries (“ARL”), who intervened in the case to urge the court to declare that Google Books was fair use. They assert that Google’s practice amounts to fair use because it is a “fair” balance between the rights of authors against the broader interests of society.

Despite this expensive and uphill battle, the Author’s Guild intends to appeal. They, along with their constituents assert that the ruling is unlikely to sit well with many authors, who criticize Google’s scanning as an indignity and a money grab that is harmful to research authors’ market viability.

While Google certainly does obtain an advantage over other search providers with the infusion of this technology, it does not seem to profit unreasonably for such advancement at the authors’ expense. William McGrath, intellectual property professor at The John Marshall Law School commented:

“Google Books is not a tool used to read books, so it should not be expected to harm authors by usurping their market. If anything, it will benefit authors because it facilitates the purchase of books that researchers find using Google’s text-searching capabilities. Key to the court’s ruling is its finding that the digitization of the books is ‘transformative’ under the fair use doctrine, turning regular book text into searchable data.”

Read more here.

The truth is Google’s library acts just as such, a giant library where users can browse at their leisure a large database of research books. This new service that Google has provided, converting older works into the digital medium allows for fast and efficient searching unlike anything before. Transforming the printed word into the digital word is something that will benefit not only the reader but the authors as well. As suggested by the citing decision, by providing this service and allowing users to search through this new database it may even breathe life into many forgotten research materials.

Furthermore, the availability, or more exactly, the free availability of research materials only promotes the wealth of society. The only potential harm is that it may hinder researchers from undergoing long research endeavors if they believe they will not be justly compensated. However, this contention has not been shown to hold any weight. Until such a time when researches can say that the free availability of academic materials does more harm than good, fair use will prevail.

In case, Google Books seems to be doing more good than harm, and that’s exactly what fair use intends to protect. Innovation at its best.

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