GBS: Some Fair Use Analyses

Since the question of whether Google’s activities thus far are protected by fair use has come up at some length in the comments, I thought I’d post pointers to some of the extensive academic discussion of the question:

Regardless of one’s opinion of whether scanning and (for-profit) snippet display and (for-profit) non-display use are “fair use”, Band’s analysis is fatally flawed by a host of erroneous factual assumptions and oversights.

Band gets off on the wrong foot with his description of Google’s partner program: “a publisher controlling the rights in a book can authorize Google to scan the full text of the book into Google’s search database…. The Partner Program raises no copyright issues because it is conducted pursuant to an agreement between Google and the rightsholder.” In this, Band echoes Larry Lessig’s mistaken conflation of “publisher” and “rightsholder”, causing his argument similarly to run off the rails. Anyone familiar with the actual background and context to the dispute would recognize that the Partner Program raises major copyright issues, because (a) the publishers claiming rights often don’t actually own those particular rights, and (2) there is no evidence that Google exercised due diligence in verifying print publishers’ rights claims (or, indeed, made any attempt to verify them at all).

Band might have been more likely to notice these issues had he paid any attention to the principal precursor to Google’s book scanning and display (and to the author-print publisher disputes it provoked), Amazon’s scanning, indexing, and display of much more than snippets under its “Search Inside the Book” program.

Band reveals a complete lack of understanding of the terms of actual book contracts, and their degree of (non) standarization, with his bizarre and unsupported claim that, “Attachment A arguably tilts towards the author because it provides the author with a larger share of the revenue than she would have received under her book contract with the publisher.” In fact, almost any realistic envisioning of the implications of Attachment A, in the context of the rights claims being made by print publishers and the structural advantages it gives them over authors, would lead to authors receiving a dramatically smaller share of revenues than they are entitled to under existing contracts (as is already happening with Kindle e-books).

Band notes that, “Supporters of the settlement further argue that it will benefit the authors of out-of-print books,” but fails to note the significance of the fact that all of the cited briefs raising this argument were from parties other than those authors themselves, who vigorously contested this claim.

Band’ explication of this argument makes clear how it, like Google’s attempt to spin opponents of the settlement as opponents of online availability of texts, rests on Google’s false equation of itself with the entirely of the Internet (“if it’s not on Google, it’s not online”, they seem to assume), and the corollary failure to notice the numerous ways that, no thanks to their publishers (and sometimes over their active attempts at obstruction, as in Random House v. RosettaBooks), authors are monetizing their electronic rights through licensing e-books, selling PDF’s, or posting HTML versions with advertising on authors’ own Web sites, among other methods.

In his portrayal of authors’ reasons for opposing Google’s book scanning and the settlement, Band is arguing with a straw man. While he’s right that, “The original Library Project would have been particularly important for authors of out-of-print books,” he’s just wrong to think that, “the authors of the books would not have had the legal right to authorize Google to scan their books.” Authors believed they had this right, they exercised it early and often (in practice, many of their publishers having gone out of business and in no position to challenge it), and in the RosettaBooks case they successfully defended it.

Band is simply wrong to think that, “This large class of authors probably would have been pleased that Google provided users with a mechanism to find their abandoned books.” Leaving aside alternatives to Google, Google already provides such a mechanism: Google the title and/or author of an “out-of-print” book and you are likely not only to find not only the author’s Web site but on it a either the content of the book (with ads from which the author earns money) or directions for how to purchase an e-book or hard copy from the author or their licensee. Authors don’t generally abandon their books, and time after time in discussing the settlement with other writers I’ve heard from those making money — and expecting those revenue streams to grow as e-books’ share of the market for text grows— from books abandoned by publishers.

The authors who most strongly opposed the settlement were not those opposed to e-books or online availability of their work, but those already most actively monetizing their electronic rights, or expecting to profit from doing so over the life of their copyrights. Their fears were that Google, in cahoots with print publishers and their ongoing pattern of rights theft, would compete with and cannibalize authors’ revenues from multiple channels of electronic and online distribution of their work.


I agree that many publishers putting books in Search Inside have not obtained the rights to do so. However, Amazon’s predecessor “Look Inside the Book,” was even more like the Google program. Amazon scanned portions of books amounting to about 20 pages (if I recall correctly) and posted PDFs without the participation or consent of any rights holder or putative rights holder, and without notifying any rights holder. They scanned and posted portions of mine, and these were fully printable, saveable, and copiable.

I told Amazon I wanted to choose which portions of books appeared; that I was willing to have some pages posted that I believed would increase sales, but not any pages that might cannibalize sales. Amazon said they did not allow rights holders to choose what was posted. At which point I had a lawyer write Amazon a letter telling them to take the material down immediately, which they did.

I also agree that the legal experts pontificating about how authors whose rights have reverted will be “pleased” with their “only” chance at sales offered by Googlization, has no clue what is happening in the vibrant and very rapidly increasing e-book, print-on-demand, and offset-printing self-publishing and micropublishing community. Google would stifle a rapidly growing industry segment by offering big-business, big-brand-name competition that self-publishers and micropublishers could not survive.


As a postscript to my previous comment: Lest anyone think that I’m inventing these arguments after the fact, I was arguing publicly even before Google started its book scanning that electronic rights would prove, over the life of the copyright, more valuable than hardcopy reproduction rights, and that the main problem with print or online publishers’ giveaways of electronic excerpts or full text would be that it would undercut authors’ own efforts at more direct electronic distribution.

Readers are already using the copyrighted books posted with publishers’ consent on Search Inside and Google (Partner) Book Search as standard research tools/encyclopedias that make it unnecessary to ever buy most of the books they are using.

By the way, people sometimes call me an “opponent” of e-books. I am not. I am an opponent of book piracy, and the way e-books are currently implemented makes it all too easy. Show me a hard-to-pirate format and I will be all attention. I’d love not to have to spend tens of thousands of dollars on each print run. I am far from alone in this attitude; and it is not the right of another business to decide that piracy they don’t try to prevent can’t harm the author’s or publisher’s revenues. That is my decision, mine alone, and why I will never sign away e-rights.

I am also not an opponent of print-on-demand books. I am just waiting for print quality to go up (it is currently not very suitable for illustrated books) and per-unit costs to come down (they are currently higher than for offset printing).

As it is, I’ve kept my first book in print (if you include the second edition) for over 15 years, and all my subsequent books continuously in print.

Most of the outsider arguments about authors who “would be pleased” for an otherwise “impossible” revival of their books (or books whose rights they have inherited) stem from an assumption that the books were published by large publishers and that is the only way to really sell books; together with the corresponding fact that many large publishers have tend to keep most books in print for only a few years.

However, this is by no means the only publishing method. Authors are the logical beneficiaries of the “long tail.” If the book is only selling at low volume, at low e-book prices, and the author is the only one actively marketing it, it just does not make sense for the author to share revenues with the print publisher, let alone Google and the print publisher. Amazon and other centralized sales venues make it genuninely and completely unneccessary to have a large publisher for many e-books and POD books. If you want your book available together with a large list of other books, you can just list it on a central sales venue like Amazon. Even Amazon Marketplace only, if you don’t like the terms of Amazon’s “advantage” program.

Many self-publishers and micropublishers of other authors’ books were doing this years before Google ever started their scanning project. It’s like larger businesses finally realized there were profits here and started diving for them. Even if, like Google, these businesses had nothing to do with creating or publishing those books.

In Australia the Authors-collection society gets a fair bit of its income in the form of a transfer from the federal government of moneys paid to the government, under the public lending scheme. Tax like compulsory levies, on ‘re-use’ do exist but they are first paid to the government; they are not Strictly speaking - copyright. The society is then charged with the role of distributing this money to its members . This is a fairly redistributive scheme and the justification, the public benefit, is that it allows many students to read and copy from books that authors might other wise refuse to supply. This system is I think , partly modeled on a older? UK scheme.

The GBS conflates the very opposite purposes of a tax and a royalty and this helps explain the mess about who’s ‘right’ is being collected. GBS is a chimera: an “impossible mixing of very different creatures” ,”an illusion”.

A key problem with the GBS scheme comes down to this chimerical quality . The Australian scheme is a a right of government, it is not ultimately a commercial right. Thus it gets a bit of government oversight. And it needs enough clear public necessity to outweigh the loss to individual authors of their individual rights of freedom to make their own management arrangements. The rapid spread of massively interlinked digital systems controlling and recording borrowing and scanning may soon remove the necessity for this ‘redistributive’ public lending levy. And this is a development that is of concern to collection society’s.

GBS is neither a tax or a royalty. It is a paradox of the ; IF ‘its’= true THEN ‘its’= false’ kind.


I would argue that libraries are becoming obsolete. Here I am speaking of libraries as a book-lending institution, not as the computer/Internet access centers and general community events centers they are increasingly becoming in the US. I am not opposed to community events, but I am increasingly wondering why they are supported by library funds.

Let me say that I am all for people reading books and for educational opportunities, and that I am aware that there are very low-income residents of the US. However:

The US public library system was set up when books were significantly harder to buy, both by reason of expense and by bookstores being more difficult for many people to access.

The public library system was also set up before interlibrary loan was nearly as common. (When I was in college, ILL was mostly for academics and quite obscure titles.) It was set up before the Internet made both new and used books very widely available at, often, a wide range of prices. It was set up before e-books. It was set up before a huge amount of free information was voluntarily made available (for a variety of reasons, some commercial) on websites.

Although many people with comfortable incomes love the thought of free books, whether obtained legitmately or by piracy, and are coming to expect all information free, the vast majority do not really need all these free or very cheap books. It has never been easy for creators of works to make enough money to support the creation of those works; the current parastic cultural climate may make it impossible.

So, I’d vote to vastly reduce the number of public libraries and make them services for people who truly cannot afford to buy books. Like a food program, medical clinic, or government-assisted housing for those who qualify. I’d also vote to transform those libraries that act largely as community centers into community centers, called community centers, and getting funds devoted to community centers.


You have hit the nail on the head:

“So, I’d vote ” : GBS is an attempt to deal with a public political issue by tricking it up as a commercial contract to a very unrepresentative group.

Exactly what policy to have on things like lending library’s & fair/unfair public use ; is a public policy issue for legitmate authority to debate. Radical changes to property rights need to be thought about carefully and slowly. It should not done on the drop of a morally panicked hat, in a court room in New York.

“free books, whether obtained legitmately”

If they are obtained legitmately then they are not free, they are paid for in some way or other. The payments to the public lending scheme partly come directly out of public funds , the universities get direct public funding and partly by Education fees paid by the individual student to the university, most of these fees are paid by a system of public loans (The HECS scheme) lent to the individual student, that are then paid back, by her over her working life .

Gmail is a kind of registry of names and addresses


A Search engines main activity is; generating lists that are sorted by frequency of usage/viewing and frequency of association of different Combinations and Permutations of Names. Could these skills be put to a additional new use for public benefit ,different to the commercial uses they were originally formulated for?

Americans just don’t get it. They think that just because Google is American it must be good. This is the copyright notice in my book, “Fevens, a family history:”

All rights reserved. No part of this publication may be reproduced, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the author.

What part of this statement do Americans not understand? I have been told that there are codes put in place on web pages to prevent search engines from scanning those pages. This copyright notice was my “code”. The University of Wisconsin and Google disregarded it and hacked into my work, and at the very least I am owed an apology.

Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me

As a British author, I want to put on record that since I began posting and commenting on the GBS and circulating papers about it, many of the people who have contacted me with expressions of encouragement have been Americans, among them several regular commenters on this blog.

In my studies of the GBS agreement I have drawn an immense amount of valuable guidance from the ground-breaking work of American legal and booktrade analysts of the settlement, including Lynn Chu, C. E. Petit, Pamela Samuelson, James Grimmelmann, Edward Hasbrouck, Scott E. Gant, Andrew DeVore and the Ashley Grayson Agency.

James Grimmelmann’s Laboratorium and Public Index websites have been invaluable resources to all of us who have been attempting to come to grips with the GBS, whatever our particular take on it. I am extremely grateful for the hospitality of his comment columns here and the huge amount of work he and his team have put into The Public Index.

I note that both on Laboratorium and the Public Index the perspectives have been international, with attention paid, for example, to the debate in Europe and the La Martinière law suit in France. I have much appreciated this.


Really, the American public is not responsible for what Google does. The issue is copyright holders of all nations versus copyright theft by big businesses, this one happening to be American.

I put copyright notices in my books too, but I believe Google has scanned at least five of them anyway. I don’t want an apology. I want (a) firm knowledge neither Google, the libraries, nor any other parties will use these scans in any way and (b) financial compensation for copyright violation, not tied to any such uses.


Have the possible side-effects on ‘Patents on ideas’ been talked about much? Many science/Technological and computer programing books contain ideas that are subject to patents. It seems plausible that under GBS , If I was to read of an ‘idea’ in a google licensed (and thus paid for) book ,and was to innocently copy that idea in my own commercial life; the issue of Who or what held the patent right could be open to question??

A certain Mr Monier owned a garden shop and around 1880 he was trying to make a better cement garden pot, when he worked out how to do it ; he took a patent on the idea of reinforced concrete. Hence ‘monier’ concrete. How would he have fared in the GBS world, would publishing the idea transfer ownership of the idea or only of the book ‘it’ was written in? If the answer is that publishing it could transfer the ‘title’ to the idea, there could be a problem; How could Mr Monier advertise/promote his idea without publishing it?

Also, Human Ethics’ codes are very very strict about informed consent. Has the big conflict with academic standards about the ‘human ethics’ codes that govern research been talked about, much?

Under contemporary U.S. law, publishing an idea in a book starts a one-year countdown to apply for a patent. If you don’t file the application with the year, you’re “statutorily barred” from applying for one. That’s the case regardless of whether it’s visible through Google Books or not.

If you do possess a patent, then publishing a book conveys no rights to anyone to make or use the patented device or process. They must still come to you for a license. The “innocent” who reads of the idea and implements it is still an infringer. Once his patent issues, Mr. Monier is free to advertise and describe his idea at any length and in any medium without undercutting his rights.

This is all only under U.S. law, of course; I can’t speak to how the law would work in any other country.

James thank you. the treatment(s) of inserts owned by right holders other than the holder of the..’book-right’? that Google is buying is pretty confusing.

I often state that the University of Wisconsin and Google was a commercial enterprise that digitized my work. Siva Vaidhyanathan, in *The Googlization of Everything and the Future of Copyright, listed above in James’ post, states:

I have asked many scholars and activists who support Google’s position on this project: what possible justification under fair use or any other provision or exemption under copyright is there for the creation and distribution of an entire copyrighted work as payment for a commercial transaction? I know of no such principle, no such precedent, and no such exemption. I have yet to receive an answer.

Those seeking a “national digital library” may find this article of interest. Some may also find the discussion of interest, especially Frances Grimble’s comment.

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me