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A victory for fair use

The Second Circuit Court of Appeals today upheld the decision that permits Google Books to scan and index books to make them searchable and for data mining. The court agreed that this is fair use. It also generalized the prior court’s finding so now libraries can also scan their own collection, so long as they provide access as limited as Google Books does. Woohoo!

Here’s the surprisingly readable decision [pdf].

The Authors Guild has now vowed it’s going to appeal to the Supreme Court. But I don’t get it.

Not that this necessarily matters to the legal case, but has the Authors Guild been able to attribute any actual damage to Google Books? Their site today says:

America owes its thriving literary culture to copyright protection. It is because of that success that today we take copyright incentives for granted, and that courts as respected as the Second Circuit are unable to see the damaging effect that uses such as Google’s will have on authors’ potential income.

If Google Books hasn’t produced any visible damage so far, shouldn’t that count as evidence that “uses such as Google’s” are unlikely to damage the interests of AG’s constituency?

In a longer piece on its site, the AG says:

Google Books will indeed harm the market for books,

and

Further, if Google’s doing so is fair use, then it sets a precedent allowing anyone to digitize books for similar purposes, which inevitably will lead to widespread, free, and unrestricted availability of books online.

But at this point, eleven years after the beginning of the suit, shouldn’t they be able to demonstrate some of that inevitable harm? Did the prior ruling lead to any increase in the unrestricted availability of free books online?

Haven’t we tested The Authors Guild’s hypothesis?

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