02 December 2013

Search engine giant succeeds on plea of fair use

Scanning of books and providing access to digital library  

The Authors Guild (plaintiff) claimed that by scanning more than twenty millions books, providing verbatim snippets of text to aid in searching and retaining scan copies of books, providing such complete scans to libraries, Google (defendant) had infringed their rights. After over eight years of litigation, the search engine giant was successful in getting ruling that while prima facie there may be infringement, there was sufficient transformation in what was offered to the public and it was a case of fair use.    


Copying entire works is infringement

Even while, quoting Bill Graham Archives, 448 F.3d at 613 ("copying the entirety of a work is sometimes necessary to make a fair use of the image"), it was held that it worked against the plea of fair use. However, since some of the pages were never available to a user and Google ensured that it was not possible to get complete copies of books by giving successive search strings, it did not negate fair use defense. What worked in favour of fair use was that digitizing and making books search enabled improved their reach and particularly for the disabled and underserved, remote populations.  


Benefits to the society, incidental commercial benefits to the defendant

As per various Amici briefs,  it had emerged as most important search tools and helped libraries to conserve rare books as well as optimise their resources, find books etc.  An important argument raised by the appellants was that Google was a for-profit organisation and even if it did not sell the scans, it did benefit commercially.  An argument put forth by the plaintiff was that commercial benefits did flow to the search engine by way of advertisements and it had a bearing on profits. Another factor which lent strength to the plea of fair use was that most of the books were non-fiction books and already published. The plaintiff’s argument of eroding the market or supplanting books also fell flat since it was held that Google Books worked like traditional in-store book displays to increase awareness about books and potential readers came to know about it.  


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