Back in April, the Author’s Guild moved to appeal a November ruling which determined Google Books is not in violation of fair use. It submitted its claim to the US Second Circuit Court of Appeals in objection to the ruling of Judge Denny Chin. Most recently, the Electronic Frontier Foundation joined Public Knowledge and the Center for Democracy and Technology to submit a third-party amicus brief regarding the case.
The EFF reaffirms the court decision that Google Books’ use of digitized media for indexing and search purposes satisfies the fair use requirement that the digitized material is “transformative.” The brief asserts that written works do not have to be creatively altered in order to to be transformative; rather, using technology to provide a new use for old content also fits this stipulation.
The original November victory for Google Books set in place an important distinction between indexing and distributing content.
Although Google Books must index entire books for search purposes, it does not publish the entirety of the content on its website. Advocates emphasize that Google Books is a valuable resource for authors by connecting their work to readers who may not otherwise have found it. Librarians are often vocal advocates, telling the EFF that they acquire new books for their collections after learning about them through Google Books.
In its appeal, the Authors Guild claims Google “drove potential book purchasers away from online book retailers, increased its advertising revenue and stifled its competition by digitizing, distributing and monetizing millions of copyright-protected books without permission or payment.”
The original ruling by Judge Chin established that Google Books in fact assists online retailers by connecting users to their online stores, but the Guild’s preliminary statement asserts that Google’s primary goal was to undermine the Amazon Marketplace while increasing its own ad revenue.
The Electronic Frontier Foundation points out that this narrow interpretation of fair use has been challenged repeatedly in recent years. The all-important stipulation — whether a work is sufficiently “transformative” — is open to a number of interpretations in the wake of technological innovation.
“In the 21st century, technological innovation often depends on copying and reverse engineering copyrighted works, in many ways and at scale. If that copying—most of which is entirely invisible to the public—infringes copyright, then huge swaths of innovation must come to a halt, to the public’s detriment and with little benefit to authors.”
The Guild’s Appellant Brief concedes that Google Books does establish a new purpose for the indexed books. However, it also asserts an interpretation of copyright law’s “transformative” definition that prioritizes the addition of new and creative material, arguing that the establishment of a new purpose is secondary and can not be used as a standalone benchmark. The EFF and Judge Chin appear to be in agreement on their rebuttal. Both insist that where no clear interpretation exists, it is the Court’s responsibility to act with leniency. The Amicus Brief released quotes the Court’s decision on Sony Corp. vs. Universal City Studios:
“It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.”
The brief recommends a methodology for what it calls “technological fair use” based on a 2010 law review article by Edward Lee. Lee suggests a distinction between creational, operational, and output uses. EFF contends that Google Books is for the most part “creational” under this analysis because the original work is used to create a new technology, whereas the original text itself is not distributed in its entirety to the public (in Google Books’ “operational use”).
The EFF, Public Knowledge, and the Center for Democracy and Technology concluded their brief with a subsection titled “When in Doubt, Courts Should Interpret Fair Use Liberally, Not Narrowly.” Corporations and unions are increasingly bringing to court charges that rely on laws written before the advent of digital technology and online information sharing.
As the original lawmakers could not have possibly foreseen the creative and innovative environment we currently live in, it is not for us to guess what they would have ruled in contemporary situations. Instead, it falls to Congress and voters to establish new litigation where necessary. Rather than asking what power old laws have over today’s questions, it will be more effective to assess the current environment and move forward. Organizations such as the EFF argue that the Court’s role is to protect innovation with a liberal application of copyright laws such as “fair use.”