Fair Use or Overriding Authors’ Rights: the Google Books Saga Continues

This week, Google revived its fair use defense to the United States Court of Appeals for the Second Circuit. Google would like to get the suit it is fighting against the Authors Guild dropped as a class action with new suits arising on a book-by-book basis. However, the question still remains whether Google Book Search truly constitutes fair use or whether it infringes authors’ rights to reproduce, distribute, and display publicly.

Google has had a long standing legal battle with the Authors Guild and publishers since it first initiated its book digitizing project, Google Books. The Google Books legal saga began in 2005 and nearly ended when the parties reached a settlement. Yet this settlement never came to fruition because the U.S. District Court in New York found that allowing such a settlement would grant Google a monopoly and unfair advantage over authors and publishers. Although, the Second Circuit reasoned that the District Court’s ruling could be appealed. Authors Guild is holding strong in demanding $750 per book as recovery for copyright infringement. Though Google Books proclaims its database consists of about 20 million books, only a portion of these books would qualify for the $750 since most of them are foreign works or already in the public domain not subject to copyright law.

Google maintains that book scanning in its context is “fair use” reasoning that its use of the books is transformative. While fair use is usually not found where whole works are used or copied, Google argues that only portions of the copyrighted works would be available. Furthermore, Google does not to use the books in the same way that readers or consumers of the texts would, especially if the texts have never been digitized. Google believes the Google Books Search is beneficial to authors and publishers because it provides readers easier access to material by searchability and online readiness. Thus, the question remains whether authors and publishers should be allowed to sue together.

According to a recent PaidContent article, Google believes that allowing the class action deprives authors of financial benefits, such as increasing demand in the books. Furthermore, many authors were in favor of their works' public display and searchability on Google.

Google makes a strong point in advocating for book-by-book lawsuits. Since more authors than not are okay with Google’s book scanning project, it should be up to individual authors to determine whether their copyrights have been violated. On the other hand, copying or scanning complete written works strips authors of their opportunities to determine when and how their works should be made digital. Some authors may want to maintain the integrity of their written work on the page, especially if they are not as proud or enthused by it. Other authors may want greater control over how much of the work readers can or should have access to although, I cannot see too much of a detriment in expanding the accessibility or demand in readers. It could provide some authors with a chance to make more of a name for themselves if their name popped up in a search result of a new or unlikely reader and consumer.