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Google's Book-Scanning: Education Community Responds to Fair Use Ruling

• By Rhea Kelly
• 11/18/13

Last week, a federal judge dismissed the long-running lawsuit between Google and The Author's Guild over the search giant's Google Books book-scanning project. In the case filed in 2005, Google was charged with copyright infringement for scanning books without permission from copyright holders and making the text available for online searching.

US District Judge Denny Chin ruled in favor of Google on the grounds of "fair use," the doctrine commonly used to protect news reporting, research, library archiving and scholarship. In his ruling, Chin noted numerous benefits of Google Books:

"In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits."

Members of the education community commended the decision, citing the Google Books project's importance in education and the potential impact of the ruling on other fair use cases.

Anne Kenney, university librarian at Cornell University, told Campus Technology, "Judge Chin's decision is a strong reaffirmation of the reasons why the Cornell University Library joined the Google Books project in 2007. The decision echoes Judge Baer's ruling in the related HathiTrust decision, a case in which Cornell is a defendant and which is currently under appeal. These two cases demonstrate how fair use can be an important defense in supporting the library's role in making material more accessible and useful for teaching, research and learning."

"I am thrilled with the ruling for many reasons, primarily for its promotion of fair use. The ruling will benefit higher education because it opens new opportunities for research and scholarship," said Karin Wittenborg, university librarian and dean of libraries at the University of Virginia. "On a personal note, I am pleased that the decision came down on the side of education and scholarship, rather than on the side of (Hollywood) commercial interests. I believe that publishers and authors will also benefit from this ruling."

Michael Keller, university librarian at Stanford University, commented: "Those of us in the research and education sectors of the United States can only be relieved and pleased that Judge Chin issued a decision, rather than engineering a settlement, in support of the use of the fair use doctrine that underpinned the Google Books project involving the library collections of Stanford, the University of Michigan and several other research libraries. Judge Chin affirmed that the preponderance of measures for assessing the validity of the fair use determination is directive in this case and we think potentially significant for other fair use cases. The transformative purposes and actuality of the Google Books program that enabled 'snippets' to be read and indexing to be performed are most important elements of Judge Chin's decision."

"In concluding that this is a fair use under the Copyright Act, the court points out the many benefits of this technology in facilitating research, expanding access to old and out-of-print books, and benefiting underserved populations such as print-disabled individuals by allowing them to gain knowledge of and access to far more books," said William McGrath, intellectual property professor at The John Marshall Law School in Chicago, in a prepared statement. "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."

A number of higher ed institutions have partnered with Google to scan texts from their library collections, including Harvard University, Columbia University and Cornell University.

A PDF of Judge Chin's ruling can be found on the Public Knowledge site.