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Last week, a federal appeals court upheld a district court ruling that Google Books — the search engine that uses scans of actual books for its results — is a legal “fair use” under U.S. copyright laws. This decision is not sitting well with the professional authors trade group that sued Google, and which intends to take its argument before the U.S. Supreme Court.
“America owes its thriving literary culture to copyright protection,” reads a statement from Mary Rasenberger, Executive Director of the Authors Guild, the group that first sued Google in 2004.
That lawsuit alleged that Google Library — a program through which research libraries allow Google to scan selected volumes from their collections to make them available for keyword searches online — and the subsequent Google Books search engine violated the copyright on these books because search results didn’t just tell you which books were relevant to your query, but also brought up images of scanned pages dubbed “snippets.”
Because these snippets showed not just the searched-for terms but some context on neighboring pages, the Guild contends that authors are losing out on book sales.
In their opinion [PDF], the Second Circuit Court of Appeals concluded Google Books snippets are insufficient to be considered a market replacement for a full book, especially since Google limits the number of scanned pages that be seen.
The Second Circuit — located in New York City, the heart of the U.S. publishing industry — did acknowledge there are some cases in which search results might suffice in providing enough information that the user no longer has any need to buy that book. At the same time, it held that such instances would likely involve researching a fact — and you can’t copyright facts.
For example, if you want to confirm the final day of the Allied forces assault on Sicily, a Google Books search would provide you a number of titles that contain this information. You no longer need to purchase that book, and while you might cite the book as your source, the author of that book holds no copyright on the fact being cited.
In spite of the fact that two courts have ruled against it, the Guild maintains the legal system simply isn’t understanding the impact of Google Books on authors.
“It’s unfortunate that a Court as well-respected as the Second Circuit does not see the damaging effect that uses such as Google’s can have on authors’ potential income,” writes Rasenberger. “Most full-time authors live on the perilous edge of being able to sustain themselves through writing as a profession… so even relatively small losses in income can make it unsustainable to continue writing for a living.”
Rasenberger says she hopes the Supreme Court will “recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience and vitality of our intellectual culture.”
In 2008, the Guild and Google Books reached a settlement deal that would have seen Google pay out around $125 million in royalties to affected authors. Additionally, Google would have been able to continue the scanning program and make money from it (Google does not currently generate any revenue from Books search results).
But in 2011, a federal judge rejected that settlement because it would have given Google a “significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”
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