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Judge Defends Google’s Book-Digitization Project

(CN) - Google's mass book-digitization project makes fair use of copyrighted material and benefits all society, a federal judge ruled Thursday.

The long-running lawsuit concerns a deal Google struck with several major research libraries in 2004 to digitally copy their collections. By scanning more than 20 million books since then, Google has created an electronic database of books, making text available for online research through the use of "snippets," or excerpts from the books.

The Library Project, one of two digital books programs pioneered by Google, includes all types of books, from novels and biographies to dictionaries and cookbooks. The majority of the books in the program are nonfiction, out-of-print books, though some in-print books are also featured.

The Partner Program, the other component of Google's digital project, involves the "hosting" and display of material provided by book publishers and other rights holders. It was designed to help publishers sell books and help readers discover them.

While the Partner Program included 2.5 million books as of early 2012, Google had scanned more than 20 million books for its Library Project, without compensating copyright holders or seeking their permission.

The library plans to provide full-text access to so-called "orphan works" whose copyright owners could not be located, but it normally does not allow users to access the digitized books in their entirety. Its system delivers titles and page numbers via keyword search, helping readers find the copyrighted books at libraries. Blind or print-disabled users can get special access to the original works.

The Authors Guild and individual authors sued Google in 2005, claiming it had not obtained permission from the copyright holders to copy and digitize books that were still under copyright.

In 2011, an initial settlement failed to win approval from Judge Denny Chin, sitting by designation in the Southern District of New York from his usual post with the 2nd Circuit Court of Appeals.

Chin later refused to dismiss the guild's amended complaint and certified the individual plaintiffs' class.

The guild's case was unaffected by a settlement Google reached with the publishers' group last year that allows Google to scan library books and allows publishers to request the removal of specific digitized titles.

Meanwhile Google successfully appealed the class certification with the 2nd Circuit remanding the case back to Manhattan for "consideration of the fair use issues."

Chin found Thursday that Google has digitally reproduced millions of copyrighted books, making them available to libraries for download, and kept copies for itself on its servers and backup tapes, without asking for the copyright owners' permission to do so. But the Copyright Act's fair-use doctrine, which allows limited copying of a work for criticism, research and education purposes, shields Google's digital books project, according to the 30-page opinion.

Google's use of the copyrighted works transforms expressive text into a research tool that helps readers, librarians and scholars identify and find books, and opens up new fields of research, the opinion states.

"Words in books are being used in a way they have not been used before," Chin wrote. "Google Books has created something new in the use of book text - the frequency of words and trends in their usage provide substantive information."

And although Google is a for-profit entity, it does not sell the scans it has made of the copyrighted books or the snippets that it displays, nor does it run ads on the pages that contain excerpts from the books. Google may benefit commercially by attracting users to its websites through the Google Books tool, but the fact that Google Books serves important educational purposes outweighs Google's financial motivation, according to the ruling.

Chin also noted that, although Google Books offers full-text search of books, it limits the amount of text displayed in response to a search, and blacklists certain pages and excerpts.

The authors failed to persuade the court that Google Books will have a negative impact on the market and that its scans will serve as a "market replacement" for books. To the contrary, Chin noted, Google Books enhances book sales to the benefit of copyright holders and helps readers discover and order books.

"In my view, Google Books provides significant public benefits," Chin concluded. "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."

A federal judge in Manhattan concluded last year in the related HathiTrust case that digitizing the books to enhance research and access is a legal fair use of copyrighted material, therefore Google is not liable for secondary copyright infringement for providing libraries with digital copies, according to Chin's opinion.

Google applauded the conclusion to the 8-year-old case.

"As we have long said, Google Books is in compliance with copyright law and acts like a card catalog for the digital age - giving users the ability to find books to buy or borrow," a spokesperson said in a statement.

The Authors Guild said it plans to appeal the decision.

"We disagree with and are disappointed by the court's decision today," Authors Guild executive director Paul Aiken said. "This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense."

If upheld on appeal, the decision may help Google retain its leadership in Internet search, which has allowed it to become the world's largest online advertiser. Google, which makes most advertising money from online searches in the United States, reported more than $36.5 billion in advertising revenues in 2011, according to court filings.

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