Google Books’ libraries scanning is “fair use”: “Words in books are being used in a way they have not been used before”.

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Il 14 novembre sorso un Giudice federale del distretto di New York ha dato ragione a Google, titolare del programma noto come Google Books, contro la Authors Guild, cioè la più importante associazione americana a tutela degli interessi degli autori (già pubblicati).

Il programma di digitalizzazione delle opere nelle biblioteche americane portato avanti da Google,  con la conseguente possibilità di effettuare ricerche online con parole chiave nel contenuto dei libri digitalizzati, nonché  la possibilità di visualizzare “snippets” di testo (porzioni di testo che contengono le parole ricercate) sono stati  dichiarati leciti, grazie all’eccezione al diritto esclusivo di copyright  nota negli USA con il nome di “fair use” (concetto analogo alle “utilizzazioni libere” riconosciute anche dalla nostra legge sul diritto di autore – art. 70 –  per scopi di critica, di discussione, insegnamento, ricerca ecc.).

Qui si raggiunge il pdf. della decisione.

Qui sotto, due estratti dal testo della sentenza a mia cura, con i passaggi fondamentali della motivazione del Giudice Denny Chin (in due livelli, il primo -A- più sintetico, il secondo -B- più esteso).

La  Authors Guild ha annuciato l’appello.

Update: un commento su IPKat (Eleonora Rosati)

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A) “books have been scanned by Google and are available for search on Google’s website, without plaintiffs’ permission…

Plaintiffs commenced this action on September 20, 2005, alleging, inter alia, that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders.

From the outset, Google’s principal defense was fair use under § 107 of the Copyright Act, 17 U.S.C. § 107.

The sole issue now before the Court is whether Google’s use of the copyrighted works is “fair use” under the copyright laws. For the reasons set forth below, I conclude that it is.

1)       Google’s use of the copyrighted works is highly transformative.Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books… Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text — the frequency of words and trends in their usage provide substantive information.

2)       …the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and available to the public. These considerations favor a finding of fair use.

3)       …The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Google scans the full text of books… and it copies verbatim expression. On the other hand, courts have held that copying the entirety of a work may still be fair use.

4)       …The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” … plaintiffs argue that Google Books will negatively impact the market for books and that Google’s scans will serve as a “market replacement” for books… users could put in multiple searches, varying slightly the search terms, to access an entire book. Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books… Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion…To the contrary… Google Books enhances the sales of books to the benefit of copyright holders…. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales… Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use.

      …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.”.

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B) “…In 2004, Google announced two digital books programs. The first, initially called “Google Print” and later renamed the “Partner Program,” involved the “hosting” and display of material provided by book publishers or other rights holders.

The second became known as the “Library Project,” and over time it involved the digital scanning of books in the collections of the New York Public Library, the Library of Congress, and a number of university libraries.

The Partner Program and the Library Project together comprise the Google Books program (“Google Books”).

[.]

As for the Library Project, Google has scanned more than twenty million books, in their entirety, using newly-developed scanning technology.

[.]

Pursuant to their agreement with Google, participating libraries can download a digital copy of each book scanned from their collections.

[.]

Some libraries agreed to allow Google to scan only public domain works, while others allowed Google to scan in-copyright works as well.

[.]

Google creates more than one copy of each book it scans from the library collections, and it maintains digital copies of each book on its servers and back-up tapes. Participating libraries have downloaded digital copies of in-copyright books scanned from their collections. They may not obtain a digital copy created from another library’s book. The libraries agree to abide by the copyright laws with respect to the copies they make.

[.]

Google analyzes each scan and creates an overall index of all scanned books. The index links each word or phrase appearing in each book with all of the locations in all of the books in which that word or phrase is found. The index allows a search for a particular word or phrase to return a result that includes the most relevant books in which the word or phrase is found. Because the full texts of books are digitized, a user can search the full text of all the books in the Google Books corpus.

[.]

Users of Google’s search engine may conduct searches, using queries of their own design. In response to inquiries, Google returns a list of books in which the search term appears.

[.]

A user can click on a particular result to be directed to an “About the Book” page, which will provide the user with information about the book in question. The page includes links to sellers of the books and/or libraries that list the book as part of their collections. No advertisements have ever appeared on any About the Book page that is part of the Library Project.

[.]

For books in “snippet view” (in contrast to “full view” books), Google divides each page into eighths — each of which is a “snippet,” a verbatim excerpt. Each search generates three snippets, but by performing multiple searches using different search terms, a single user may view far more than three snippets, as different searches can return different snippets. For example, by making a series of consecutive, slightly different searches of the book Ball Four, a single user can view many different snippets from the book.

[.]

Google takes security measures to prevent users from viewing a complete copy of a snippet-view book.

[.]

An “attacker” who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages.

[.]

The benefits of the Library Project are many.

First, Google Books provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears.

Google Books has become an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it facilitates finding and checking citations. Indeed, Google Books has become such an important tool for researchers and librarians that it has been integrated into the educational system — it is taught as part of the information literacy curriculum to students at all levels.

[.]

Second, in addition to being an important reference tool, Google Books greatly promotes a type of research referred to as “data mining” or “text mining.”. . Google Books permits humanities scholars to analyze massive amounts of data — the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time.

[.]

Third, Google Books expands access to books. In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books. Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices. Digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities.

[.]

Fourth, Google Books helps to preserve books and give them new life. Older books, many of which are out-of-print books that are falling apart buried in library stacks, are being scanned and saved. These books will now be available, at least for search, and potential readers will be alerted to their existence.

[.]

Finally, by helping readers and researchers identify books, Google Books benefits authors and publishers. When a user clicks on a search result and is directed to an “About the Book” page, the page will offer links to sellers of the book and/or libraries listing the book as part of their collections. The About the Book page for Ball Four, for example, provides links to Amazon.com, Barnes&Noble.com, Books-A-Million, and IndieBound.

[.]

Plaintiffs commenced this action on September 20, 2005, alleging, inter alia, that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders.

From the outset, Google’s principal defense was fair use under § 107 of the Copyright Act, 17 U.S.C. § 107.

[.]

Google has digitally reproduced millions of copyrighted books, including the individual plaintiffs’ books, maintaining copies for itself on its servers and backup tapes. . Google has made digital copies available for its Library Project partners to download.

Google has displayed snippets from the books to the public.

Google has done all of this, with respect to in-copyright books in the Library Project, without license or permission from the copyright owners.

The sole issue now before the Court is whether Google’s use of the copyrighted works is “fair use” under the copyright laws. For the reasons set forth below, I conclude that it is.

[.]

The fair use doctrine is codified in § 107 of the Copyright Act, which provides in relevant part as follows:

[T]he fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • (2) the nature of the copyrighted work;
  • (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • (4)   the effect of the use upon the potential market for or value ofthe copyrighted work.

[.]

The first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1).

Google’s use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative.

[.]

Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text — the frequency of words and trends in their usage provide substantive information.

[.]

It is true, of course, as plaintiffs argue, that Google is a for-profit entity and Google Books is largely a commercial enterprise.

[.]

Here, Google does not sell the scans it has made of books for Google Books; it does not sell the snippets that it displays; and it does not run ads on the About the Book pages that contain snippets. It does not engage in the direct commercialization of copyrighted works.

Google does, of course, benefit commercially in the sense that users are drawn to the Google websites by the ability to search Google Books. While this is a consideration to be acknowledged in weighing all the factors, even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes.

Accordingly, I conclude that the first factor strongly favors a finding of fair use.

[.]

The second factor is “the nature of the copyrighted work.”.

Here, the works are books – all types of published books, fiction and non-fiction, in-print and out-of-print. While works of fiction are entitled to greater copyright protection here the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and available to the public. These considerations favor a finding of fair use.

[.]

The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

Google scans the full text of books – the entire books — and it copies verbatim expression. On the other hand, courts have held that copying the entirety of a work may still be fair use.

Here, as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search.

On balance, I conclude that the third factor weighs slightly against a finding of fair use.

[.]

The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.”

Here, plaintiffs argue that Google Books will negatively impact the market for books and that Google’s scans will serve as a “market replacement” for books. . It also argues that users could put in multiple searches, varying slightly the search terms, to access an entire book.

Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence.

Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays.  Indeed, both librarians and their patrons use Google Books to identify books to purchase. Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences.

Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.

Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use.

[.]

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.

[.]”.