Why Google's Fair Use Victory Is Absolutely Right

The Google decision handed down by Judge Denny Chin in the US

on Thursday was absolutely no surprise to those paying attention. Last year's HathiTrust decision, in which Judge Harold Baer determined that the librarys' scanned book repository was allowable under Fair Use, meant implicitly that Google's scanning - which made the repository possible - could not but have been Fair Use too. Judge Chin had nowhere else to go.

Predictably the Authors Guild has announced that they will repeal the decision. This is, frankly, about as dumb as it gets. All the arguments against Google's scanning over the years advanced by publishers and authors have been profoundly weak on all levels, and easily demolished if emotions were put aside and minds engaged instead.

Looking back, Google probably profoundly regrets it opted to begin settlement negotiations back in 2005 when authors and publishers first sued. But the financial penalties if it lost were scary indeed - possibly running into billions of dollars.

In plain English here are the basics: scanning is equivalent to bookseller shelving and merchandising in the analogue world, and viewing snippets is equivalent to customer browsing. Just as shelving and browsing are not breaches of copyright law, neither are their digital equivalents. That's really the essence of this issue. It's always been that simple. (Although a Google 'browse' around a particular word or phrase is a search across the whole corpus of twenty million scanned books, not just one or two. It's an 'uber-browse' perhaps!)

The problem is the issue has been enormously complicated over the years because of two things: the litigation initiated by publishers and authors; and the subsequent, very complex and contentious 'Settlement Agreement' negotiated by the parties over a three year period. The Agreement was eventually outlawed by Judge Chin in 2011 because of the effective monopoly status it granted to Google. Google was the privileged partner in the proposed grand remuneration scheme.

Right from the start, blindsided by a vacuous '(but it's MY PROPERTY!') prejudice, publishers and authors could not see what was staring them in the face -  a massive new marketing opportunity being handed to them on a platter. And Google was bearing all the expense!

The overall response to this decision, apart from the delight expressed by Google and its library partners, seems to have been rather muted. Even the Authors Guild seems to be going through the motions. After eight years the issue seems to have lost its power to excite. 

There is a distinct possibility that new book search companies will now emerge, and the issue will become, as it always should have been, the size of the snippets. Some specialized companies, focusing on medical and technical titles for example, will offer entire lines, even short paras, more advanced data mining functionality and more targeted and specific purchase recommendations. 

But at least scanning is now legit.