The Dewey decimal system may soon be obsolete. With a few clicks, Google’s expansive digital library is available with an Internet connection. Google Books has scanned over 20 million books and magazines for public access and has consequently been battling an 8-year lawsuit against The Authors Guild.
Users can search and read literary works from Dr. Seuss’s The Cat in the Hat to Dante’s Inferno. This presents the fundamental tension between IP rights holders and consumers. Under copyright law, authors are granted exclusive rights to their literary works for life plus 70 years. Such rights include the right to reproduce, distribute, and display. Google Books reproduces, displays, and disseminates literary works, sometimes without the permission of the author. So why is Google Books non-infringing?
The recent court opinion applied fair use to tip the scales in favor of Google Books and IP consumers. Use, which would otherwise infringe is fair if such use is for the purpose of news reporting, criticism, teaching, commentary, research, and scholarship. Courts also apply a four-factor test when determining if a particular use is fair.
Google Books passed this test as its public benefits and transformative nature outweighed the infringement upon authors’ copyrights. However, this doesn’t quite translate into free books for all. The works scanned without a license from the author are not displayed in their entirety; only snippets of such works are available for preview. Paired with a “Get Print Book” option for every work, Google Books is a tool to help readers discover and purchase books. This simultaneous access and economic incentive tradeoff will be a constant in the digital age.
How snippets are chosen is still a question that needs answering. A fair use factor to be considered is the amount and substantiality of the portion used in relation to the work as a whole. One could imagine a scenario in which plot twists and spoilers are revealed by reading the previewed pages, thus discouraging the purchase of that literary work. In this case, would Google Books still be fair?
The court claims that Google is promoting the literary market by providing a reader preview and platform for purchase books. But this substantiality factor may weigh heavily in copyright owners’ favor should the snippets impact the market potential or value of the copyrighted works. The Authors Guild plans to appeal the decision and the case will likely be heard next year.
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