Google wins appeal

Google wins appeal

It’s been almost two years since I last wrote about legal challenges to Google’s book scanning activities…and I started writing about it more than four years before that.

What’s changed in those two years?

Not much…and that’s important.

According to this

Associated Press article by Larry Neumeister, reproduced in CBC News

and other sources, the 2nd U.S. Circuit Court of Appeals has upheld Judge Denny Chin’s decision that the way Google is scanning and distributing books falls under Fair Use, meaning that it does not infringe on the rightsholders’ rights.

Here is the actual


rendered today, October 16th, in the Authors Guild vs. Google, Inc.

Here’s the sum up:

“The Court of Appeals concludes that the defendant’s copying is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), does not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfies § 107’s test for fair use.”

This short excerpt, however is where I at least emotionally am in a different place than the court:

“Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

It brings up the basic  dichotomy.

We use the term “copyright protection”, and that’s how I think of it…as protection for the authors’ intellectual property from unfair exploitation.

The other side of it is that copyright law is intended to benefit the public…and that could be at the expense of the individual.

How does enabling an author to get compensation help the public?

It does it by encouraging the creation of more works.

It also, very specifically, sets a limited time for the author to benefit from that work…and then it becomes owned by the public (it becomes part of the “public domain”).

Now, I am a reader and a writer, so I think to some extent I can see both sides.

Do I take advantage of the public domain and Fair Use?


I love being able to read free public domain “classics” for free.


I play within the rules. I like rules. I used to manage a gamestore, and rules are what make games fun.

That doesn’t mean, though, that I wouldn’t be interested in having the rules change.

More than five years ago, I wrote one of the posts that got me the most pushback:

Should copyright be permanent?

It explores the idea that copyright should be permanent, in exchange for more Fair Use.

Over this half decade, I’ve started to like the idea more.

Schools would be able to use current, copyrighted works for educational purposes without paying for them.

A hundred years from now, though, the movie of The Martian could still generate money for a rightsholder.

One immediate response to that people make: it would be a corporation making the money, not the author or the author’s descendants, in most cases.

That assumes the older model: the creator sells the rights to a publisher/distributor.

That may be less true over time with authors independently publishing, and keeping those rights for their descendants.

Regardless, my feeling is that the public doesn’t have an inherent right to a “shared culture” without recompense.

It just doesn’t feel right to me that eventually, Shakespeare belongs to everybody.

I’m sure many of my readers will disagree with that, and that’s fine with me.

I’m not saying I’m right and other people are wrong…I’m just trying to communicate how I feel about it.

It’s also important to note that this decision doesn’t say that Google can copy authors’ books and distribute them in full without the authors’ permission.

It does say they can copy them…even give a digital copy to a library.

They seem to be arguing that it is distributionright, not copyright. 🙂

They (it’s a three judge panel, with the decision written by Judge Pierre N. Leval) make it clear that a profit motive is not a barrier to Fair Use.

That’s also something that should be said unequivocally. When you see Saturday Night Live doing a parody, they are certainly doing it with a profit motive. That doesn’t mean that they aren’t also driven by a creative impulse, but there is nothing wrong with making a profit off Fair Use.

Could the Authors Guild appeal this to the Supreme Court?

Sure…they promote themselves as an advocatory agency, and one place advocation happens is in court. Fighting in court helps demonstrate their worth to their members.

My guess is that this won’t be the last time I write about this. 🙂

So,  what does this mean for you?

It means you can search using Google Books and see a “snippet” of a book under copyright protection without the author’s permission.

It may also increase the likelihood that books survive, because the digital copies Google makes and gives to libraries (the specific library that loaned them the book) is something the library might not have been able to do. Google uses special technology, and can put a lot of money into it.

I want books to survive, of course…but for me, I would rather have a book disappear forever than have it made available to the public against the author’s wishes.

Ooh, it hurts to say that…practically (and selfishly, as a reader), that sounds bad, but for me, ethically, it feels right.

I’m very interesting in hearing what you think. I have intelligent, compassionate readers who may be able to argue for the other side very effectively. Ideally, that’s what I want for my readers…to hear multiple viewpoints ably presented.

Feel free to tell me an my readers what you think by commenting on this post.

Update: thanks to reader Barbara Barry, whose comment helped improve this post.

Join thousands of readers and try the free ILMK magazine at Flipboard!

* I am linking to the same thing at the regular Amazon site, and at AmazonSmile. When you shop at AmazonSmile, half a percent of your purchase price on eligible items goes to a non-profit you choose. It will feel just like shopping at Amazon: you’ll be using your same account. The one thing for you that is different is that you pick a non-profit the first time you go (which you can change whenever you want)…and the good feeling you’ll get. :) Shop ’til you help! :) By the way, it’s been interesting lately to see Amazon remind me to “start at AmazonSmile” if I check a link on the original Amazon site. I do buy from AmazonSmile, but I have a lot of stored links I use to check for things. 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy  Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.

11 Responses to “Google wins appeal”

  1. Phink Says:

    Here is something some of your readers may want to know about. Hastings (Hastings Entertainment) is having a one day only sale today (Sat 17th). All used books $29.99 or less is on sale for $2.99. WOW! Makes me wish I still read DTB’s. We have one in Jonesboro, AR (about 30 miles from me). I’d almost get a few and give them away. There are none in San Francisco but looking at the map I see roughly 50 or 60 red dots covering the US. I thought you should know. Oh yeah, graphic novels, and clearance items are excluded.

    • Bufo Calvin Says:

      Thanks for writing, Phink!

      That was a great sale! I really appreciate you letting me know, so I could let my readers know. 🙂 Yesterday was such a busy day for us! We went to the dog park about half an hour from home, drive home, took the dogs a bit later to a dog Halloween party about forty-five minutes from here, then went to my sibling’s birthday party about an hour from here! I’m glad I have a hybrid. 🙂 We don’t go out socially very much (if you don’t count the dog park), so it was just a fluke we had two events on the same day…especially so far apart.

      • Phink Says:

        For Christmas we got our adult daughter 8 books (6 hardcovers) for a little less than $26 including tax. What a great gift for so little money.

      • Bufo Calvin Says:

        Thanks for writing, Phink!

        Congratulations! Yes, book are wonderful gifts, and can change lives. A single copy or license of a book can even change more than one life. 🙂

  2. Barbara Berry Says:

    In the first paragraph, did you mean “does NOT infringe”? If not, I cannot make sense of the statement.

    • Bufo Calvin Says:

      Thanks for writing, Barbara!

      I appreciate that catch! Just a “sin of omission”. 😉 I’ve fixed it now, and will credit you with helping make the post better. I sometimes type faster than my fingers can think, I guess…

  3. tuxgirl Says:

    I think we’ve discussed this before, but I fall on the opposite side from you on copyright. I think copyright terms currently are too long, especially in the case of unsuccessful works. Most of those become orphan works where it is impossible to find the correct copyright holder. I think there should be a short beginning length for copyright, and for a nominal fee ($100? $500) it can be extended for another 5-10 years. The copyright holder can extend it indefinitely. I would also prevent the sale of copyright… It can pass to another person/entity through wills. If a work reaches the point where it is not generating the copyright holder at least $100/5 years, I think it is fair for it to go to the public domain if the author isn’t wanting to pay to extend it.

    • Bufo Calvin Says:

      Thanks for writing, tuxgirl!

      I really appreciate you expressing the other side! I think it’s healthy for people to see different perspectives.

      I have two main differences with what you have written here.

      First, there is the suggestion that copyright is an issue of commerce, of being able to make money, and therefore, it’s reasonable to require people to pay for it. It’s like a business license fee in that model.

      Right now, people don’t need to pay anything at all to have a copyright in the USA. They don’t even need to do anything: copyright is automatic, and they don’t need to do anything to maintain it.

      People can register the copyright, which is necessary seeking some legal remedies, and that does have a fee associated with it, starting at, I think, $35. See

      The second is the idea that the default is public domain. This comes from a basic split of ideas between “natural right” and “public interest”.

      In both cases, we start with an artist creating something.

      On the natural right side (which is where my inclinations are) the author has the right to control the use of that creation. If someone uses it contrary to the author’s wishes or without the author’s permission (with certain exceptions), that intrudes on the author’s rights. It is similar to someone having bought a car, and someone else stealing it: the owner of the car has a natural right to keep that property, having paid for it, again with certain exceptions. In that model, copyright exists to protect the individual, in the same way law exist to punish theft.

      On the public good side, there is no natural right to control something you’ve written. What you’ve written is part of the society’s culture, and it only exists because of that society. If you choose to make money off it, then it is similar to starting a business, and having to pay licensing fees for it and to follow regulations.

      Under natural right, if nothing active is done, the rights remain with the author…that’s how I would like to see it.

      Under public good, you have to do things to first establish and then to maintain control of that work…that fits what you’ve suggested.

      Is writing a business, or is it “part” of the author?

      That’s the basic philosophical difference between the two positions, in my opinion. I think they are both legitimate positions…

  4. Luis Says:

    I found this video about copyrights by CGP Grey useful, I hope it helps.

    • Bufo Calvin Says:

      Thanks for writing, Luis!

      It was an interesting video, and I’m sure some of my readers will find it educational…thanks!

      In terms of the facts and research, I thought it was accurate.

      I would disagree with some of the opinions in it, certainly…but I think my readers can generally tell the difference. 🙂

      For example, there is the suggestion that the value of a copyright should always terminate with the death of the author (unless the term ends before that).

      That misses the fact that the value of the book when being licensed to a publisher is due in part to how much the publisher can make on it after the author’s death. The author will make less when alive because the book will have less value. That also would tend to disadvantage authors based on demographics and actuarial tables: “We are going to pay you less for your book because you are a male, and therefore more likely to die sooner than if you were a female.”

      The other main thing for me is that this one often talks about profit, which is the “business license” theory of copyright. I fall on the “natural right” side. Whether or not your copyright is valid should not, in my mind, have to do with how much profit you have or haven’t made.

      I think I may write another post on this to get into the two theories more. I appreciate you pointing my readers to this video! I do think it is well done…I just don’t agree with some of its opinions.

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