A wide-angle lens on fair use

I first saw the news about Thursday’s decision affirming fair use in the Authors Guild v. Google Books case when I turned my phone back on after an eleven hour flight from Istanbul.  The Turkish Air plane was still taxiing at JFK at the time, so when I cheered out loud I got a lot of bewildered looks from my fellow passengers.  I tried to explain to the folks sitting near me what I was so elated about, but I don’t think it translated well.

Fortunately, it is much easier to explain the impact of this ruling here, mostly because so many of our colleagues stepped up to the task quite quickly.  The best thing I can do for my readers is probably simply to direct you to a few of those discussions; I especially recommend those by Kenny Crews, Nancy Sims and Brandon Butler.  There is also this interesting piece by Eric Goldman in Forbes, and this story from the New York Times.

The case, of course, has been going on for over eight years, and got very complicated when a proposed settlement, that would have imposed a sweeping revision to copyright relationships in the U.S., was proposed, revised, and rejected.  A class-action was certified by the judge, but vacated on appeal and the case was sent back to the trial court for a ruling on fair use.  For all that complexity, however, the fair use ruling seems to have been pretty easy.  Certainly Judge Chin handed down a sweeping affirmation of fair use for book scanning when the purposes of that scanning are preservation, indexing and access for persons with disabilities.  Since this parallels the decision made by Judge Chin’s colleague Judge Baer in the HathiTrust case last year, it was perhaps more predictable than many of us thought.  And, of course, there is a growing body of precedent about fair use out of not just the Second Circuit but also the Fourth, Ninth and Eleventh Circuits that all pointed Judge Chin in this direction.

What is most remarkable and valuable about this ruling is not any new ground it breaks in fair use law, but its meticulous placement of that law back where it first arose — in the issue of public benefit and the purpose of copyright.  It looks at fair use with a wide-angle lens, which helps us see more clearly the correct placement of the discussion.  Before he begins his analysis of the question of fair use, Judge Chin catalogs the benefits of the Library Project and Google Books.  That catalog includes a searchable word index of tens of millions of books that benefits libraries and researchers, the facilitation of new types of research through text and data mining, access to books for traditionally underserved populations, especially including the disabled, book preservation, and the generation of new audiences for authors as well as new income for publishers.   After he completes his four factor analysis — finding that three factors strongly favor fair use and only one, the amount used, “weighs slightly against” it — Judge Chin reiterates this list of benefits and concludes that “Google’s actions… advance the arts and sciences [and therefore] constitute fair use.”

Fair use was developed by judges over a century and a half ago to ensure that the exclusive rights in copyright did not choke off the very progress of science and the useful arts they were intended — constitutionally required, in fact — to serve.  By “book-ending” his analysis, as one of my colleagues expressed it, with the public benefits of Google Books and the purpose of copyright, Judge Chin has created a powerful context for his ruling and an important reminder for all of us of what this odd body of law is really for.

In this context, it is very easy to see how selfish and myopic these lawsuits against libraries (in the broadest sense, since the decision in this case focuses a lot on the benefits of GBS to libraries) really are.  The Authors Guild is really asking the courts to forget about students, researchers, blind people, poor people and even the very authors they are supposed to represent in order to preserve some notional expectation of a windfall profit that might be discovered someday when they finally figure out the internet.  As Brandon Butler puts this point, “There is no pot of gold at the end of these lawsuits, and the research tools they are trying to kill are their best hope of finding an audience.”  I am reminded of Aesop’s fable about the dog and his reflection, where the greedy dog with a bone sees his own reflection in a stream and, trying to snatch the bone away from the “other” dog, drops what he already has into the water.  Increasingly the Authors Guild, as well as the publishers in the Georgia State case, look a lot like that greedy and foolish dog.

The Authors Guild has already announced the mind-bogglingly stupid intention to appeal this case.  After eight years of pouring money into it, failing to find the pot of gold they hope to gain from a settlement, and losing on the key legal principle they were fighting for, the AG apparently has learned nothing.  But the chances of a reversal on appeal seem very slim.  Judge Chin’s analysis is tight and firmly grounded in the fundamentals of copyright law.  It is supported by a rapidly growing body of precedent and it parallels another decision made in the same Circuit last year.  Finally, it grows out of a remand, from the same panel that will hear any further appeal, that clearly communicated the belief of those judges who sent the case back that fair use applied to Google Books.  In that remand, the judges who were asked to rule on the issue of class certification sent the case back (without a decision about the class action) with instructions to consider fair use.  Had Judges Laval, Parker and Cabranes not thought that a finding of fair use, which would make the class question irrelevent, was likely, this would have been a futile waste of judicial resources, something overworked federal judges avoid like the plague.  So there is already very strong reason to think that the AG’s appeal will fail.

Finally, in spite of my remark about there being little in this decision that is very new, I think there are two important conclusions that we can take from this ruling.  First, it is a reminder that the commercial nature of a user does not automatically rule out fair use.  In his decision, Judge Chin properly focuses on the use, which has tremendous public benefits and which does not directly generate a profit, rather than the user.  In the context of the educational benefits of the Book Search, the fact that Google is a for-profit company is really trivial to the analysis.  Second, the decision provides an important perspective on mass digitization.  Rights holders often focus on the scale of a project and assume that large-scale reproduction cannot be fair use.  This is the core of the publishers argument in the Georgia State appeal, and it is wrong.  Both Judge Chin and Judge Baer have now concluded (and Judges Laval, Parker and Cabranes have strongly hinted their agreement) that even massive digitization, when it is done for a transformative purpose, can be fair use.