Google Books Ruling a Win for Fair Use … and Rich Tech Companies

Google Books was ruled legal, but only after an eight-year court battle that a smaller company could never have afforded.

Google Books was ruled legal, but only after an eight-year court battle that a smaller company could never have afforded.

Photo Illustration by Justin Sullivan/Getty Images

Score one for asking forgiveness rather than permission.

A federal court has dismissed a lawsuit from a group of book authors against Google over its Google Books project. The judge decided that Google did not violate authors’ copyright by scanning more than 20 million books and making them searchable online. U.S. Circuit Judge Denny Chin ruled instead that the project fell under “fair use” provisions of U.S. copyright law.

I’m not a lawyer, but this seems on its face like a reasonable decision. Google has been careful to avoid making its scanned books available in full, instead offering “snippets” online and linking to sites like Amazon and Barnes & Noble where people can buy the books if they want to read them in full. I think most people other than those in the Authors Guild, the group that sued Google, can agree that having these books digitized and searchable is better than not having them digitized and searchable.

As the Washington Post’s Timothy B. Lee points out:

Google was the natural candidate to pioneer this case because its search engine for the Web is based on a similar legal theory. Google Books performs the same service for books that its flagship search engine performs for the Web. Google’s Web search engine depends on copyright’s fair use doctrine, and Google believed the same legal principle would apply to the print world.

Yet this decision could also be seen in a different light: as an addition to the growing body of intellectual-property case law that incentivizes successful tech and media companies to steal first—or aggregate, or whatever—and answer questions later. It didn’t work for Napster. But ever since, the tide has been shifting. YouTube, Pandora, and many others have built big businesses relying at least in part on other people’s intellectual property. When legal challenges have arisen, they’ve been able to adjust and defend themselves in court, and come out the other side a strong company standing on solid legal ground.

This is not necessarily a bad thing. Broad interpretations of fair use allow for innovations that benefit consumers. And in Google’s case, asking permission from 20 million authors would have been impossible. But notice I said that the system today allows “successful” tech and media companies to benfit from fair-use provisions. The troubling part is that it’s the little guys—the geeks, the academics, the bloggers, the individuals who are just trying to do something fun—who lose, because they can’t afford to fight an eight-year court battle like Google can.

The trick, it seems, is to steal so aggressively and profit so much that by the time the lawsuits hit, you’re rich enough to fend them off. I’m guessing that the fast-growing viral-content site BuzzFeed, for instance, will emerge from its various copyright lawsuits far stronger than it would have been if it had scrupulously observed the law from the beginning.

Let’s hope, then, that if the Google decision stands on appeal, it benefits not only Google but smaller organizations that come in its wake with similarly worthwhile projects that rely on fair use doctrine. It would be a shame if our legal system effectively restricted fair use to those who can afford to hire the largest teams of lawyers.