Google's triumph advances transformative use of copyrighted work

Publication Type: 
Other Writing
Publication Date: 
November 24, 2013

Cross-posted from Al Jazeera America.

On Nov. 14, a New York federal court judge ruled to uphold Google’s ambitious project to scan and digitize millions of books from cooperating libraries into a massive, searchable online database. This was a victory not only for Google but also for the greater public good. Judge Denny Chin dismissed a copyright lawsuit brought by authors, finding that Google’s copying and indexing of more than 20 million books to create a new, highly useful search tool is protected by fair use.

Google Books digitizes entire copies of millions of books, the majority of which are out of print, and creates a comprehensive word index that helps readers, scholars, researchers and others to identify and find books. Google doesn’t display whole copies of books that are still under copyright, however; it allows users to see only limited snippets. After they have read previews through the database, users are then directed to external vendors, where they can find and purchase the books they are interested in. The Silicon Valley-based search engine giant describes the initiative as a service that “acts like a card catalog for the digital age.”

The Authors Guild, a professional organization representing more than 9,000 published writers, filed the lawsuit in 2005, along with other authors and publishers, to stop Google Books. The suit relied on an erroneous and exaggerated conviction that the law gives copyright holders the power to stop any unauthorized copying of their works, no matter how innovative or socially beneficial. As former U.S. Reps. Bob Barr and Pat Schroeder (the latter was then-president of the Association of American Publishers) wrote about the case at the time, “Our laws say if you wish to copy someone’s work, you must get their permission.”

But our laws do not say so. The fair use provision of the Copyright Act gives users the legal right to quote, rely on and copy existing works in order to create new works. Specifically, you do not need permission to copy someone’s work when your work transforms an existing work by adding value, creating new information, new aesthetics, or new insights and understandings, and does not supersede the market for the original work. The doctrine of fair use is why journalists don’t need permission to quote the books they review, why "The Daily Show" doesn’t have to ask Fox News for permission to show clips in order to make a joke, and why Google, Microsoft and Yahoo are able to copy Web pages and index the Internet to create search engines that millions of people rely on every day. Fair use is vital to our First Amendment commitment to free speech because it limits the power of copyright holders to censor speech and monopolize access to our cultural heritage.

Copyright holders have stymied useful innovation for too long using the threat of litigation.

The fundamental purpose of U.S. copyright law has always been to serve the public interest by promoting knowledge and learning. It accords authors copyrights so they can derive rewards from their creativity, disseminate their creations and create more works, which benefits society as a whole. But an unlimited copyright monopoly requiring permission for every use would squelch the very creativity that copyright is intended to foster. Fair use is a critical limit that ensures the law serves the public interest.

In the eight years since this court battle began, millions of people have come to rely on and appreciate Google Books. It is not a tool for reading full-length books. Students, teachers, librarians and others rely on the service to efficiently identify and locate books; scholars use it to conduct data- and text-mining searches that open up new fields of research; libraries are able to preserve and give new life to their aging collections; print-disabled and underserved populations now have better access to books.

These many social benefits are achieved without authors and publishers losing existing revenue. Instead, their books gain exposure to new audiences and new sources of income. If the Authors Guild had its way, on the other hand, no one could copy a book without first obtaining the author’s permission, and a tool like Google Books would not exist.

Copyright holders have stymied useful innovation for too long, using the threat of litigation to put an end to innovations that make transformative uses of copyrighted works. Google’s hard-won victory adds to a body of fair use decisions protecting important technological advancements, from videocassette recorders to Internet search engines. This important decision protects the public interest by ensuring that copyright law is not used to stifle new, innovative ways to access and spread our culture and advance knowledge.

And we all can be thankful for that.