# Book Scanning is Fair Use



## Steerpike (Oct 11, 2012)

Or so says the Southern District of New York. As the article notes, this could foreshadow the outcome of publisher's case against Google.

Court: Book Scanning Is Obviously Fair Use | Techdirt


----------



## Kevin O. McLaughlin (Oct 11, 2012)

Well, the title is an overstatement. In this case, the judge ruled that the scanning Hathi Trust did: of orphan works, whose copyright owners could not be identified - is legal.

That's a very different animal from Google presenting works clearly still under copyright for public consumption, as they attempted to do. It's related enough to be interesting, but the critical difference is the ability to identify the copyright owner.

Don't forget (as the writer of the piece you linked seems to have) that the original settlement deal for the Google program was denied by a judge for being too lenient to Google and not taking sufficient measures to protect copyright owners.


----------



## Steerpike (Oct 11, 2012)

Kevin O. McLaughlin said:


> Well, the title is an overstatement. In this case, the judge ruled that the scanning Hathi Trust did: of orphan works, whose copyright owners could not be identified - is legal.
> 
> That's a very different animal from Google presenting works clearly still under copyright for public consumption, as they attempted to do. It's related enough to be interesting, but the critical difference is the ability to identify the copyright owner.
> 
> Don't forget (as the writer of the piece you linked seems to have) that the original settlement deal for the Google program was denied by a judge for being too lenient to Google and not taking sufficient measures to protect copyright owners.



No, I don't believe that is accurate. The Plaintiffs specifically asserted ownership of well over 100 of the books at issue. In fact, if no assertion had been made of an infringement of a work owned by the Plaintiffs, they probably wouldn't even had standing. So the ruling isn't limited to orphaned works as the Plaintiffs identified themselves as the copyright owners of numerous works. The Defendant in the case agreed that the Plaintiff had established a_ prima facie_ case of copyright ownership. The judge actually mentions that at the beginning of the Fair Use analysis (and if there is no copyright infringement, there's no Fair Use question). The Judge then undertakes the Fair Use analysis under the assumption that the works are protected by copyright and the Plaintiffs have shown ownership, and he finds that the actions of the Defendant fall under Fair Use.


----------



## Devor (Oct 12, 2012)

It looks like the judge felt that scanning the books opened them up to new avenues of research and therefore ruled that the project didn't fit into the same competitive space as the original works.

I have trouble believing that would readily extend to Google, which I understand is hoping to make works available to the general public and would, by necessity, fit into the same competitive space as the original.


----------



## Steerpike (Oct 12, 2012)

Google doesn't scan copyrighted material and put the whole thing out there to the public. If that's what they did, there would be little debate over whether it was infringement. I think this case helps Google. Wouldn't surprise me to see the Author's Guild settle their suit after this.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> Google doesn't scan copyrighted material and put the whole thing out there to the public. If that's what they did, there would be little debate over whether it was infringement. I think this case helps Google. Wouldn't surprise me to see the Author's Guild settle their suit after this.



So what is Google trying to do?


----------



## Steerpike (Oct 12, 2012)

Devor said:


> So what is Google trying to do?



Here's my understanding, from what I've read and from using Google Books:

You type in a search at Google Books and get a bunch of hits. For works that are in the public domain, you can access the entire book right there. If it is under copyright, then you get little snippets that you can browse and you can decide to buy the book (either right there or by going elsewhere). Books under copyright are not displayed in their entirety. You can go to Google Books and check it, but that's what I've seen there.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> If it is under copyright, then you get little snippets that you can browse and you can decide to buy the book (either right there or by going elsewhere).



When you put something for sale, it's common to make agreements with the people you're selling with which prohibit you from selling elsewhere.  Amazon Selects, for instance.  If you the author can't list the book for sale elsewhere, why should Google have that right?

It doesn't matter that Google is actually directing you to the appropriate seller.  They would still be using your book, sold through your partner Amazon, to promote their competing books.  They're stealing the value of the "network economies" your book offers.

If it's not illegal, I definitely think it should be.


----------



## Steerpike (Oct 12, 2012)

I disagree that it is illegal, and I don't think the ultimate outcome will reflect that it is.

Putting aside copyright, based on the cited court case, what law do you think is being broken? And if you meant copyright, then how do you distinguish over the SDNY case? Just on the basis that the commercial use is higher?

When you sign up with Kindle Select, you aren't prohibited from linking to the book on Amazon, you're just prohibited from providing the book to people yourself. They have to buy it through Amazon. My Kindle Select book is already advertised through Google, so clearly Google linking to a Kindle Select book (and being paid for it) is no problem.

Further, as far as profiting off an association with the book, I think Google and other search engines already do this. When you search for one book, they'll show you paid advertisements for other books. They're making money off of creating that association. I don't think that's a problem, and if Google Books is doing that it is to a lesser extent I think.

We'll probably never find out, since Author's Guild is more likely to settle now. If it went all the way through trial and appeal, I suspect Google would win. What's more, they 'should' win.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> Further, as far as profiting off an association with the book, I think Google and other search engines already do this. When you search for one book, they'll show you paid advertisements for other books. They're making money off of creating that association. I don't think that's a problem, and if Google Books is doing that it is to a lesser extent I think.



Just being able to list your book, with all of the accompanying advertising and materials, is something that people pay for.  Otherwise Google wouldn't have to scan excerpts without consent.  Fair Use doesn't cover aspects of a product with commercial value that compete with the original purpose of the book.  This does.

Referring to the SDNY case in this regards, I think, is a misunderstanding of what that case was expressly about.  The judge ruled that the _fundamental purpose_ of scanning the books differed from the original usage.  That isn't the case with Google.  Google wants a website that sells your book so they can compete with your seller and make money off the advertising - and eventually, to generate enough traffic that they can cut your seller out of the equation.  That is using an author's materials in competition with the author.

There's no doubt about it.  If they're scanning your book so they can make a sales page to sell it, that's illegal, even if all they do is redirect you to another site.  They are stealing a major source of the value of your book - the network economies your book brings to the seller - something that businesses openly pay for.


----------



## Steerpike (Oct 12, 2012)

When you say there's no doubt it is illegal can you cite a statute or case for that proposition? If not, I'd say there is doubt. I don't think they are competing with the author. They aren't selling books without permission. You can only buy them through venues where the author has already listed the book for sale, or to used copies that have been sold once I suppose. Not sure on the used thing. You are acting as though they are independently selling these books without permission. They aren't.


----------



## Kevin O. McLaughlin (Oct 12, 2012)

First off, Steerpike - you're right, I'm wrong. . I did significantly more reading up on the case you linked to. Seems there are quite a LOT of books involved, many still known to have copyright held. In this case, Hathitrust sounds like they are merely making available scanned copies of books the member libraries already had copies of. Not only do libraries get certain exemptions to standard copyright law (fair use), but it sounds like the Americans with Disabilities Act specifically "requires that libraries of educational institutions…reproduce and distribute their collections to print-disabled individuals." There are a variety of reasons why what Hathitrust did was legal. Nice article about it here: http://www.acrl.ala.org/acrlinsider/archives/6064

On Google? My take (not a lawyer!) is that much depends upon what Google wants to do with the work. In other words, how much of the work are they planning to display? If they're displaying snippets (as they are at present) then it probably falls under fair use. I can quote snippets of a book on my blog if I want, too. Anyone can. If they are quoting substantive portions of work, or allowing display of large portions of books still under copyright, then there are potentially issues.

As for making money from sales of the book - anyone can do this. If you set up as an Amazon Affiliate, anyone who clicks through to Amazon and then buys anything there on that visit (the item linked to OR other items during that visit) makes the affiliate money. Yeah, that can really stack up after a bit. It's one way book bloggers are monetizing their blogs. Nothing wrong with Google doing the same, or something similar. So legal or not really depends on how much of the book Google intends to display, and whether those limits fall under fair use or are infringement.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> You are acting as though they are independently selling these books without permission. They aren't.



I haven't remotely suggested that that's what they're doing, so I don't know why you would say that.  Google is scanning portions of your book to do something that you've already sold someone else the rights to do, possibly the exclusive rights to do.  I think my response has been in proportion to those facts.


----------



## Steerpike (Oct 12, 2012)

Devor said:


> I haven't remotely suggested that that's what they're doing, so I don't know why you would say that.  Google is scanning portions of your book to do something that you've already sold someone else the rights to do, possibly the exclusive rights to do.  I think my response has been in proportion to those facts.



Excerpting can easily fall under Fair Use, however. You appear to be objecting to the mere fact that they may drive sales through the site, even if the sales go back to the original publisher. Let's consider these things:

1. Search engines already do this - you type in a work, you get a list of results for the work and for other works, and you get links to where you can buy the work. They're not all operating at the express permission of the author or publisher.

2. Reviewers already do this. They can review your book, provide excerpts from it, and even link to Amazon or to the publisher or whatever so people can go buy the book.

3. Bloggers do this all the time. Look at a tech blog, and how many products they talk about, along with a link to sales sites. Look in the RPG industry and see how many bloggers routinely talk in depth about publisher products, include excerpts, and include links to Amazon or RPGNow or to the publisher so that people can buy the work. 

Do you think the above-mentioned things should be illegal? And if not, what makes this case different for you? I think Google is doing much the same thing, but on a larger scale due to automation. 

Economic arguments relating to the author are going to be hard to press, I think, because if you get linked back to Amazon for a book sale through Google Books you, as author, and the publisher are all getting the same cut you would for any other sale. 

Also, Fair Use is a multi-factor test. You can't simply say that a commercial use that has some competition with the original work is automatically precluded (even if that were the case here, and I'm not convinced). Those are two important factors, but they're still two factors of the Fair Use analysis, not all of them.

Finally, I'd keep in mind that the public policy reasons why we have a Copyright system are to the benefit of the public, primarily, and authors secondarily as a means to an end. What Google wants to do furthers that policy, as the Judge in the SDNY case noted with the facts that were present there.


----------



## Steerpike (Oct 12, 2012)

Kevin O. McLaughlin said:


> So legal or not really depends on how much of the book Google intends to display, and whether those limits fall under fair use or are infringement.



Yes, I think ultimately it is going to come down to the Fair Use analysis. It won't be limited to the amount they display, but that will certainly be part of it. I think the Author's Guild would like to see the situation where none of the work can be excerpted. I doubt that is going to happen; and I doubt you'll see any court putting restrictions on whether Google or anyone else can link to a third-party sale of a book on a site like Amazon.

I get the feeling that this action by Author's Guild is sort of a reaction to the digital age, eBooks, and the democratization of publishing in general. They don't like it and they're not sure what to do about it. Ultimately, I think what Google is doing here is more likely to help the authors than hurt them, unless Google was displaying entire works or such substantial portions of them that they eliminated the need for purchase. I doubt they'll do that.


----------



## Devor (Oct 12, 2012)

If you're going to continue arguing with positions I haven't taken, this isn't going to go anywhere.

But Fair Use doctrine has less to do with the size and more to do with the purpose and use of the excerpt. Google is trying to compete with amazon, and is scanning excerpts of your book to help them promote their site for that purpose. That infringes upon author's competitive ability to sell their work - maybe not to customers, but to Amazon directly.

If most of the traffic for book sales went through Google first, Amazon would have less incentive to host as many books as they do. The sheer volume of works gives Amazon "network economies," increasing the value of each individual work even if it underperforms.

If Google is stealing the network economies for your book, then every book is less valuable to Amazon, encouraging them to reduce royalties even if it means some authors will go elsewhere. If traffic comes through Google to Amazon or to B&N or to Smashwords, then they don't need a large library of books to drive traffic to their website.

That would all be fine, but it places Google and their site in competition with Amazon, and hence, invalidates Fair Use arguments for scanning excerpts for that purpose. They're scanning your book to compete with your seller..


----------



## Steerpike (Oct 12, 2012)

(LOL. Devor - I thought I was quoting your post and I totally ended up editing it. I can't figure out a way to fix it! One sec....OK got it back - >whew<)

You keep saying that being in competition invalidates Fair Use arguments. That's not accurate, as I pointed out above. 

Also, if this does go all the way through the process, I suspect you're going to see Google end up winning.

the stolen network economies is an interesting argument, but it isn't compelling enough to me to change my mind. I don't think the plaintiffs against Google have even presented that argument, so I guess it won't get factored in.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> You keep saying that being in competition invalidates Fair Use arguments. That's not accurate, as I pointed out above.



No judge is going to rule in Google's favor if they feel it infringes upon the abilities of the original author to market their work, other Fair Use factors notwithstanding.  The case above revolved upon scanning the book for a purpose separate from the original use - "text mining," which doesn't come into play here - while Google's purpose is primarily commercial.

Based on my coursework in business, marketing and economics, I feel that Google's efforts do have the potential to infringe upon your ability to market your book.  They reduce the value of the network economies your work brings to Amazon and other sellers.




> I don't think the plaintiffs against Google have even presented that argument, so I guess it won't get factored in.



I guess I can't really speak for that.


----------



## Aosto (Oct 12, 2012)

> No judge is going to rule in Google's favor if they feel it infringes upon the abilities of the original author to market their work,



I don't see how it's harming one's ability to market the book. I feel it would help increase the marketing of ones book. I would be ecstatic to find my book on Google Books. I can't comment on the legalities and such as that is not my background, and I retain no knowledge of it. I just want to say that from an outside observer, I don't see how it could be illegal.


----------



## Steerpike (Oct 12, 2012)

Devor said:


> No judge is going to rule in Google's favor if they feel it infringes upon the abilities of the original author to market their work, other Fair Use factors notwithstanding.



Knowing judges, I wouldn't go out on a limb to say what one might or might not do in any situation. However, even if the authors believe the action by Google is interfering with their ability to market their work, merely alleging it isn't going to be sufficient. They're going to have to back it up with some non-hypothetical evidence. I doubt they'll have much luck with that. Likewise, Google will be able to present evidence of a positive effect (e.g. driving traffic). 

Keep in mind - in the case cited above the Fair Use argument didn't even go to trial. That doesn't bode well for Author's Guild, no matter how you slice it. Google won on Summary Judgment, which means the judge thought the Fair Use argument was basically a slam dunk in Google's favor and not worth litigating. 

Google has a number of advantages coming out of this case and with respect to the Author's Guild. First, what Google is doing may very well make it easier for the consumer to find and purchase the books at issues. That hurts Author's Guild. Indexing and searching of the work is pretty squarely in Fair Use in terms of this decision, so I guess the only objection left is that Google is linking to a site to actually buy it?

That argument becomes counter-intuitive, because you end up in a situation where Google providing indexing, excerpting, and searching services without linking to an authorized seller for sale is not allowed, but if they do the same thing but don't actually link to an authorized seller it is allowed?


----------



## Devor (Oct 12, 2012)

Counter intuitive or not, Amazon and its competitors have pursued an aggressive strategy of offering relatively good royalties to attract a large volume of authors, hoping to amass the market economies that would make them the go-to place for books.  If Google can preempt this with an algorithm, then listing your book has significantly less value and they will have every incentive to reduce royalties, especially for poor performers.  They won't need the volume.


----------



## Steerpike (Oct 12, 2012)

Devor said:


> Counter intuitive or not, Amazon and its competitors have pursued an aggressive strategy of offering relatively good royalties to attract a large volume of authors, hoping to amass the market economies that would make them the go-to place for books.  If Google can preempt this with an algorithm, then listing your book has significantly less value and they will have every incentive to reduce royalties, especially for poor performers.  They won't need the volume.



I doubt a court is going to come out that way. Have you seen how many sites online basically just aggregate listings of products? If your approach won out, then no site would be able to aggregate product listings/descriptions and the like and link to the underlying seller so that a user of the site can go purchase the item. The only difference here is since we're talking about books instead of, say, a digital camera, the plaintiff can assert a copyright claim. But I'm not sure that's going to get them very far.


----------



## Devor (Oct 12, 2012)

Aosto said:


> I don't see how it's harming one's ability to market the book. I feel it would help increase the marketing of ones book. I would be ecstatic to find my book on Google Books. I can't comment on the legalities and such as that is not my background, and I retain no knowledge of it. I just want to say that from an outside observer, I don't see how it could be illegal.



There's something called a fallacy of composition, the assumption that what's good for you as an individual author would be good for you in your connection to a group of authors.  Of course anything that drives sales of your book is good for you.  But let's say that being true causes royalties to go down across the board - you'd still want your book listed there, even if it hurt you and everyone else.

I don't mean to sound like a doomsday preacher.  I'm only trying to make a legal point - Google is a long way off from reaching that kind of impact, and I doubt they'll be able to get there.  People don't like middlemen.  But the potential is there, and that's what counts.


----------



## Steerpike (Oct 12, 2012)

Devor said:


> There's something called a fallacy of composition, the assumption that what's good for you as an individual author would be good for you in your connection to a group of authors.  Of course anything that drives sales of your book is good for you.  But let's say that being true causes royalties to go down across the board - you'd still want your book listed there, even if it hurt you and everyone else.
> 
> I don't mean to sound like a doomsday preacher.  I'm only trying to make a legal point - Google is a long way off from reaching that kind of impact, and I doubt they'll be able to get there.  People don't like middlemen.  But the potential is there, and that's what counts.



No, I hear what you're saying and I understand. I'm not sure the 'potential' alone counts for much in court. It's an argument to present, but I don't know how effective it would be without some kind of evidence of the kind of harm you're talking about. Do you think the same arguments come into play in the other kind of aggregation sites I mentioned?

After this, it would be nice to see the Author's Guild case actually go all the way through the process, just to see how it comes out. Instead these things usually settle, and we don't always get to see the full settlement terms.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> No, I hear what you're saying and I understand. I'm not sure the 'potential' alone counts for much in court. It's an argument to present, but I don't know how effective it would be without some kind of evidence of the kind of harm you're talking about. Do you think the same arguments come into play in the other kind of aggregation sites I mentioned?
> 
> After this, it would be nice to see the Author's Guild case actually go all the way through the process, just to see how it comes out. Instead these things usually settle, and we don't always get to see the full settlement terms.



Probably with the ones that do music.


----------



## Kevin O. McLaughlin (Oct 12, 2012)

Devor said:


> Counter intuitive or not, Amazon and its competitors have pursued an aggressive strategy of offering relatively good royalties to attract a large volume of authors, hoping to amass the market economies that would make them the go-to place for books.  If Google can preempt this with an algorithm, then listing your book has significantly less value and they will have every incentive to reduce royalties, especially for poor performers.  They won't need the volume.



You're assuming Google can pre-empt that with an algorithm. But they can't, not necessarily anyway.

For example, you talked earlier about people whose books are exclusive on Amazon. So Google scans one and puts it up. It's now searchable, and will show up in Google searches. This doesn't breach the Amazon Select contract (the book is not for sale anywhere else). Google puts in a sales link for the book, maybe? Yes, and if it's available via the Google EBookstore, they might put that link in. If it's exclusive on Amazon, they'll put the Amazon link in (because they'll make 8% of the sale for every user who clicks through, thanks to the Amazon Affiliate program).

Posting excerpts of a book isn't illegal. Linking to someplace you can buy a book from those excerpts isn't illegal either. Now if they start posting entire books - or even enough of books that it might get some readers to just use the search and not buy the books - then there is a valid case for infringement. Otherwise? No, probably not.


----------



## Steerpike (Oct 12, 2012)

Also, keep in mind as far as we know the plaintiffs are just bringing copyright claims. A lot of this other stuff isn't part of a copyright infringement claim, so it won't be relevant here. Under Fair Use, the court will consider the impact on the market for the original work, but they don't often go too far afield into speculative harms to the market for the work. Also, showing a speculative harm to Amazon is not the same as showing a harm to the market for the work, which is a broader question. Typically, they'll focus on whether what the accused infringer is doing is costing the copyright owner sales.


----------



## Devor (Oct 12, 2012)

Steerpike said:


> Also, keep in mind as far as we know the plaintiffs are just bringing copyright claims. A lot of this other stuff isn't part of a copyright infringement claim, so it won't be relevant here. Under Fair Use, the court will consider the impact on the market for the original work, but they don't often go too far afield into speculative harms to the market for the work. Also, showing a speculative harm to Amazon is not the same as showing a harm to the market for the work, which is a broader question. Typically, they'll focus on whether what the accused infringer is doing is costing the copyright owner sales.



Well, typically maybe.  But there's no reason not to view Amazon as the customer, in which case it becomes pretty straight forward.  My book is worth less to Amazon if they aren't paying for the network economies.

Also, the relevent element of fair use in New York, the jurisdiction I took b-law, is impact on "potential markets," and the sites I pulled up both talk about the need to extrapolate the impact as it becomes common practice.  That means all of this speculation is relevant.

Let's remember there is no measure for how much is too much for Fair Use. Just as the entire work can sometimes be okay, an excerpt sometimes isn't.

Lastly, it's important to remember that Google is selling books, too.  They're doing this because they want to sell more books, at low prices, while they make money on ads.  The primary purpose for scanning excerpts is to outperform their competitors.


----------



## Steerpike (Oct 12, 2012)

The Fair Use factors are the same everywhere. It is a matter of Federal Law and pre-empts State law on the issue. Where you get differences among the circuits is in the application of precedent from the Supreme Court.

"Potential markets" are a consideration in the Fair Use analysis. He, we're not talking about potential markets. The "harm" is what is speculative. That's something entirely different. The court looks at the harm to the market (including potential markets) for the work; if the harm is all supposition and speculation and a series of hypothetical happenings it's a tough sell.


----------



## Mindfire (Oct 13, 2012)

> I get the feeling that this action by Author's Guild is sort of a reaction to the digital age, eBooks, and the democratization of publishing in general. They don't like it and they're not sure what to do about it.



So why is the Author's Guild so anti-progress? Every time I hear something about them, it's that they're anti-digital and anti-change. I don't get it. You'd think the Author's Guild would be concerned with serving and benefiting AUTHORS (which the newly opened self-publishing avenues can definitely do) rather than bending the knee to traditional publishers. E-books have the potential to shift the balance of power away from publishers and toward authors, and the AUTHOR'S GUILD wants to kill it with fire? What? WHAT?


----------



## Kevin O. McLaughlin (Oct 13, 2012)

Mindfire said:


> So why is the Author's Guild so anti-progress? Every time I hear something about them, it's that they're anti-digital and anti-change. I don't get it. You'd think the Author's Guild would be concerned with serving and benefiting AUTHORS (which the newly opened self-publishing avenues can definitely do) rather than bending the knee to traditional publishers. E-books have the potential to shift the balance of power away from publishers and toward authors, and the AUTHOR'S GUILD wants to kill it with fire? What? WHAT?



You pretty much explained it yourself, Mindfire. And Konrath has gone over this far better than I could. 

The AG is run by a bunch of old guard industry members, often highly paid bestselling writers (such as the Guild's president). They have ENORMOUS economic incentive to maintain the status quo, and zero incentive to "upset the applecart". In short, the AG supports what they believe is good for a handful of bestselling writers, regardless of the overall good to publishing, writing, or writers in general. If you scan their recent blog entries, specifically all the attack pieces they've run trying to get writers up in arms against Amazon (even encouraging writers to never link to Amazon on websites and other marketing!), the comment threads are exceptionally revealing: a host of negative, hostile, even angry comments from writers refuting the AG's position.

Unfortunately, groups like the AG are effectively writing themselves out of any significance in the future industry, by ticking off the majority of writers who are out in the trenches working today.


----------



## Mindfire (Oct 13, 2012)

There needs to be some kind of underground or counterculture alternative to the Author's Guild. You know, an organization that actually exists to serve and support _authors_. You could call it "The _REAL_ Author's Guild".


----------

