The Supreme Court Won’t Stop Google From Scanning Every Book in Existence

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Google has been scanning books for more than a decade.

On Monday, the U.S. Supreme Court declined to reconsider a 2015 circuit court decision on Google Books. In the process, the Supreme Court effectively affirmed the earlier finding, confirming that it was within the company’s rights to scan millions of volumes and produce a searchable database of their contents.

This news finally closes off a legal saga that began in 2005. Authors Guild, the case’s primary plaintiffs, has long contended that by scanning books, Google is effectively depriving authors of “potential income.” Though it allows “that Google Books is a good thing,” Authors Guild insists that it’s also “one for which authors should be compensated.”

In 2013, a district court found in Google’s favor, agreeing that the company’s actions did not infringe on authors’ copyrights. As Will Oremus wrote in Future Tense at the time, “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.” It was, Oremus argued, a reasonable enough decision, though it was also one that only a company that was powerful enough to try “asking for forgiveness rather than permission” was in a position to force.

In appealing this decision, Authors Guild expressed a variety of concerns, going beyond the simple assertion that Google’s actions infringed on copyright. It insisted, for example, that Google’s scans aren’t actually transformative (an important fair use standard), even though the company only provides brief excerpts to searchers. It also worried Google’s databases might be vulnerable to hackers, potentially providing more complete access to the otherwise fragmentary works that it put on offer.

While the appeals court considered these and other possibilities, it ultimately upheld the earlier findings, asserting that the plaintiffs hadn’t produced enough evidence to substantiate their concerns. In its 2015 decision, the court wrote, “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.” That is, Google was offering something other than the books themselves.

Google Books has its share of problems—not least of all that it may be a flawed research tool—but this is still good news for those who privilege open access to information. Last year, Mike Godwin celebrated the circuit court’s decision in Future Tense, writing that it was “a big deal not just for search engine giants, copyright lawyers, authors, and publishers, but also for ordinary people.” By implicitly affirming the earlier decision, the Supreme Court’s refusal to consider the case makes that “big deal” just a little larger.