Google Book Case Appellate Decision

I’ll take a short break from solving global warming and go back to the Author’s Guild case against Google.

The appellate decision has been published, and it affirms Google’s “fair use” right to use plaintiffs’ books in their “Google Books” project.

I disagree with that decision.

For one, the Appellate Court relies on the fact that Google shows only small parts of the books in question to searchers.

As mentioned ten years ago here and here, the problem with that approach is that it only looks at the individual use of one individual searcher.

That would be relevant if the plaintiffs were suing some individual searcher. They are not. They are suing Google.

Therefore, the analysis of the “amount of use” must look at what part of the works Google uses when serving the snippets to all searchers. That is almost all of the work. And of course, as the Court notes elsewhere, Google makes copies of the whole work.

They actually make three copies.

The first one happens when they scan a book. The second one is when they copy that electronic file for the purpose of handing a copy to one of the libraries. And the third one is when the build their search database, which is a derivative work of all books they have scanned.

This becomes even clearer with a simple thought experiment.

Assume someone downloading copies of pirated music in large quantities. Can they say that they are entitled to do that?

The RIAA says no.

Has this just changed in a big way?

All the person doing those downloads would need to do is to build some kind of search interface allowing the public access to their illegal downloads in a similar way as Google. Then, under the analysis of this decision, their illegal acts would somehow fall under the fair use exception.

Again, I disagree with that. If you want to allow “transformative” use in search engines, there should be legislation addressing exactly that point, as there has been in Japan.

And such legislation should, as a matter of course, require whoever uses other people’s works in this way to pay them a fair price.


Published by kflenz

Professor at Aoyama Gakuin University, Tokyo. Author of Lenz Blog (since 2003,

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