Google Books: “Fair Use” Distorted Beyond Recognition

Copyright law permits “fair use” of copyrighted content. That is, under the “fair use” doctrine, an author’s work can be used without his or her permission. Examples include commentary, search engines, criticism, parody, news reporting, research, and scholarship. It’s a big, complicated subject, and the digital age has only made it bigger and more complicated.

Google Books spying; drawing by Electroinics Frontier Foundation

Google Books spying; drawing by Electroinics Frontier Foundation

Enter Google, the search index and advertising behemoth, which in 2004 announced its intents to scan – to digitize – all of the world’s books. That wouldn’t be a problem in and of itself, but Google also decided to make those digitized books available on-line. Not just books whose copyrights have expired, so-called “public domain” books. All books. They’ve done 25 million titles so far.

In the case of books still in copyright, where permission has been granted, not by the author but by the publisher, or a public library, or another “Google Partner,” the number of viewable pages is limited to a “preview” set by a variety of access restrictions and security measures, some based on user-tracking. Usually, the publisher can set the percentage of the book available for preview. Users are restricted from copying, downloading or printing book previews.1 A watermark reading “Copyrighted material” appears at the bottom of pages. All books acquired through the Partner Program are available for preview.

Note that Google doesn’t seek or obtain the author’s consent. Google thinks it doesn’t need to the author’s consent, because it is “fair use.”

Let’s look at an example. WC likes the works of science fiction and fantasy author Elizabeth Moon. The final volume of her Paladin’s Legacy series, contains a large number of carefully developed plot points. You can see all of them for free, without buying the book, at the Google Books “preview” of Ms. Moon’s novel. It’s true that you miss the pleasure of her plotting; chunks are excluded from the “preview”. But after you work your way through Google’s version, you have the essence of the book, and Ms. Moon hasn’t gotten any royalty.

The Author’s Guild sued Google. The case made its way through the Second Circuit Court of Appeals, which held that Google’s “preview” constituted “fair use.” And now the U.S. Supreme Court has declined to hear the case.

So, at this point at least, Google gets away with it.2

WC asked Elizabeth Moon her opinion of the SCOTUS’s decision not to hear the case. She responded:

No, it is not fair use.   It is theft of a writer’s right to control and profit from the distribution of their work.   I am dismayed and disappointed that the SCOTUS chose to believe Google’s transparent lie about their aim in the mass digitization, and ignored the very real harm this does to all writers, and to the core principle of copyright.  The libraries that colluded with Google in this theft of copyright are just as guilty.

Copyright, like patents, has been part of the success of this country since the beginning.   Expanding “fair use” to this ridiculous length is wrong.  The Second Circuit was wrong, and SOTUS is wrong to refuse to consider the case.

I am also angry.   This Court has previously granted corporations the rights of individuals, in Citizens United, with considerable harm to the political landscape.  I see this as another example of a corporation with deep pockets being preferred over the actual rights-holders who are harmed by corporate greed.

She’s right. And it is absolutely shocking that the SCOTUS denied certiorari in a case of this importance. But under the laws of the United States today, the “fair use” doctrine has largely swallowed copyright now.


  1. It’s laughably easy to work around Google’s restrictions. No, WC isn’t going to show his readers how. 
  2. Google also gets away with harvesting information about every internet user visiting its Google Books site, embedding cookies on your computer and selling that information and those cookies to advertisers. But that would be the subject of a different post.