Google wins decade long battle over copyright

The Supreme Court on April 18, 2016 declined to hear an appeal from the Authors Guild and others who had argued that Google's digital book project was "a brazen violation of copyright law" -- effectively ending the legal battle in Google's favor. See Washington Post, "Google Books just won a decade-long copyright fight." During the long time this case has been pending, Google has consistently prevailed in the lawsuit, winning in the District Court and the Court of Appeals. The ruling by the Supreme Court lets stand the earlier Court of Appeals ruling that Google's massive, online digital book collection is subject to the doctrine of Fair Use. See my previous post, "Federal Court Rules in Favor of Google in Suit by Authors Guild."

For genealogists this ruling has ramifications that extend to many online collections of digital documents that may have previously been subject to copyright claims. In the very least, the ruling allows more extensive catalog entries and paves the way for researchers to find more documents online.

I have been following the case for the entire time is has been in the court system due to my long emphasis on intellectual property rights during most of my legal career. The Electronic Frontier Foundation points out the following:

The real problem is not “fair use creep,” but “copyright creep.” Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate. New technologies and services, like the Google Books Project, depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices. Taken together, these developments mean the potential reach of copyright may extend ever further. Fair use makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive.

There are many of us who agree with this assessment. Copyright law has extended well beyond its original intent as evidenced by the tremendously long, extended copyright terms imposed on newly created works. It is doubtful that anyone now living will ever see the end of copyright protection in many current instances. The United States Court of Appeals for the Second Circuit observed the following,

For nearly three hundred years, since shortly after the birth of copyright in England in 1710,12 courts have recognized that, in certain circumstances, giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge. In the words of Lord Ellenborough, “[W]hile I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.” Cary v. Kearsley, 170 Eng. Rep. 679, 681, 4 Esp. 168, 170 (1802). Courts thus developed the doctrine, eventually named fair use, which permits unauthorized copying in some circumstances, so as to further “copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, § 8, cl. 8). Although well established in the common law development of copyright, fair use was not recognized in the terms of our statute until the adoption of § 107 in the Copyright Act of 1976. 17 U.S.C. §§ 101 et seq. 

 Fortune magazine gives an interesting assessment with which I tend to agree in an article entitled "Be Glad the Supreme Court Ended the Google Books Case."

The reason is that Google’s book scanning has resulted in a rich repository of knowledge that everyone can use. Information that was once locked up in dusty tomes at places like Harvard and Stanford can now be accessed by anyone with a keyboard and an Internet connection. 

This digital distribution has brought democratization of knowledge, and a wealth of research opportunities for readers and scholars. If the Authors Guild had prevailed, millions of books could have been closed once again, sealed off by a thicket of lawyers demanding permission to peek at any page.

I am sure that this ruling will not end copyright issues in the future, but it is a welcome end to one very longstanding controversy. The real issue hear is the ability of authors to benefit from Google and other online methods of publicizing their works, without paying the publishers. Here is another comment from the Fortune magazine article.

Finally, note that many authors never agreed with the Authors Guild’s lawsuit in the first place. These writers have claimed, correctly, that the Google scanning has saved many books from obscurity. What good is an out-of-print book sitting in an out-of-the-way library where no one can read it?