Supreme Court affirms Google Books scans of copyrighted works are fair use


A Supreme Court order issued today closes the book on (or perhaps merely ends this chapter of) more than a decade of legal warfare between Google and the Authors Guild over the legality of the former’s scanning without permission of millions of copyrighted books. And the final word is: it’s fair use.

The order is just an item in a long list of other orders that appeared today, and adds nothing to the argument except the tacit approval of the Second Circuit Court of Appeals court’s 2015 decision — itself approving an even earlier decision, that of the U.S. District Court for the Southern District of New York in 2013. So in a way it’s old news.

The 2013 decision found that the scanning of books (provided for that purpose by libraries) was not a violation of copyright, owing to its being “transformative” — in a technical sense. The books were not simply being resold or the like, but were being used for a new and creative purpose: a search engine for books that were frequently out of print or copyright. It doesn’t provide a “substitute” for the original work, and the court accepted Google’s argument that it was in fact doing a public service as well as providing authors with new audiences.

The Appeals court found that decision sound, and now the Supreme Court has, at least, declined to examine it, which is as much as saying it’s fine with them.

Naturally, the Authors Guild is furious. Executive director Mary Rasenberger lashed out in a press release:

Blinded by the public benefit arguments, the Second Circuit’s ruling tells us that Google, not authors, deserves to profit from the digitization of their books… The price of this short-term public benefit may well be the future vitality of American culture.

The vituperative tone may cause eye-rolling in some who find the fair use case to be an obvious one, but Rasenberger does go on to make a broader, more philosophical observations that are food for thought.

Authors are already among the most poorly paid workers in America; if tomorrow’s authors cannot make a living from their work, only the independently wealthy or the subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will be impoverished.

The denial of review is further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector, not only with books, but across the spectrum of the arts.

It’s fuel for the ongoing argument about whether and how technology enables and damages the creation and distribution of art, be it literary, musical, or visual. This decision is, I think, the right one, but there are hard questions that it doesn’t answer. Copyright is at best a deeply flawed system as it stands legislated today, though few will argue with the concept of legal protections of creative works.

That said, any copyright policy (or lawsuit) that fails to acknowledge the vastly different world those works enter into today versus even a few years ago is bound to crumble in time. And, for that matter, any effort sufficiently advanced of concept will certainly invite legal scrutiny and obstruction. Not every such effort can wage a decade-long legal battle, so alas, many a far-reaching project will be (and has been) smothered at the earliest stages.

The Guild will “keep fighting” and promised to act as watchdog over Google (although the Books project isn’t nearly as active as it once was) while pursuing its own solution to the question of mass online distribution and indexing.