amici brief (PDF) in the US Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.On July 8, 2014, the Library Copyright Alliance (LCA)—the American Library Association (ALA), Association of Research Libraries (ARL), and Association of College and Research Libraries (ACRL)—filed an
The brief notes that GBS has become an essential research tool for LCA members and includes numerous examples and quotations—both in the text of the brief and accompanying appendix—from librarians explaining the value of the snippet display provided by Google. The snippet display allows librarians and researchers to identify materials that are hard to find, conduct research, develop curricula and collections, make determinations on whether to request particular books through interlibrary loan, and check citations.
The snippet display is a critical function that makes GBS a valuable research tool yet does not substitute for the full text, displaying only three short snippets in response to a query. The brief notes that the appellants in the case negotiated and agreed to a settlement (ultimately rejected by Judge Chin, leading to this continuing litigation) that would have allowed Google to provide a free “preview” service displaying up to 20 percent of a book’s text—far more than the GBS snippet display. The brief points out, “If display of 20 percent of a book did not cannibalize sales of the book, then surely display of a few snippets of a book would not do so either.”
The third section of the brief discusses the relationship between Section 108 and fair use, addressing the argument made by the amici for the Authors Guild. The LCA brief points out that the Second Circuit’s own ruling just a month prior in Authors Guild v. HathiTrust rejected the argument that the existence of Section 108 forecloses reliance on fair use. Section 108 not only includes an explicit savings clause, but the legislative intent clearly demonstrates that specific exceptions codified in the Copyright Act do “not limit the availability of fair use for conduct that does not fall within its scope.” Legislative history in both the Senate and the House of Representatives discusses the relationship between Section 108 and fair use, noting that Section 108 was designed to give libraries a safe harbor and rights in addition to fair use.
Finally, the LCA brief notes that the copies Google made available to partner libraries constituted fair use. Quoting the district court, the brief points out that “the purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.” Even if the Second Circuit evaluates Google’s purpose, rather than the libraries’ purpose, the brief points out that GBS did not affect the market because libraries would not have paid licensing fees to digitize books in their collections; libraries do not have the budgets to pay for digitization licenses for legacy materials nor is there an efficient mechanism to pay for such licensing. The brief emphasizes that a potential market for extended collective licensing agreements is speculative and does not constitute existing or potential traditional markets.
This article originally appeared on the ARL Policy Notes blog on July 17, 2014.
The Association of Research Libraries (ARL) is a nonprofit organization of 125 research libraries in the US and Canada. ARL’s mission is to influence the changing environment of scholarly communication and the public policies that affect research libraries and the diverse communities they serve. ARL pursues this mission by advancing the goals of its member research libraries, providing leadership in public and information policy to the scholarly and higher education communities, fostering the exchange of ideas and expertise, facilitating the emergence of new roles for research libraries, and shaping a future environment that leverages its interests with those of allied organizations. ARL is on the web at http://www.arl.org/.