Now that the Google Book Settlement is well and truly dead, attention is turning back to the underlying legal controversy. There are many issues in Authors Guild v. Google and the parallel case of Authors Guild v. HathiTrust, but the main one is simple. Does copying books so that computers can analyze them infringe copyright even if none ever reads that copy?
If the answer is yes, then, through the magic of class action law, the Authors Guild gets to sue Google for a minimum of $750 x several million books. Who would get these billions of dollars is unclear.
If the answer is no, then the Authors Guild would have to point to instances where Google has made a nontrivial portion of a book available to the public without permission of justification such as fair use. There might be one or two of these, but I think Google won’t loose sleep about statutory damages for a handful of books.
I recently wrote an amicus brief, along with Matthew Jockers (Assistant Professor of English at the University of Nebraska, Lincoln) and Jason Schultz (Assistant Clinical Professor of Law; Faculty Co-Director, Samuelson Law, Technology & Public Policy Clinic), arguing that such non-expressive is use fair use. I.e., that text-mining is not copyright infringement.
More than 60 professors and researchers in the digital humanities joined our brief because, as we said:
“If libraries, research universities, non-profit organizations, and commercial entities like Google are prohibited from making non-expressive use of copyrighted material, literary scholars, historians, and other humanists are destined to become 19th-centuryists; slaves not to history, but to the public domain. History does not end in 1923. But if copyright law prevents Digital Humanities scholars from using more recent materials, that is the effective end date of the work these scholars can do.”
This is what is at stake.