Scanning whole books is fair use

A landmark fair use ruling: a judge in the Southern District Court of New York has ruled that Google's program of scanning books for libraries, and giving them copies to use for full-text search is fair use. The suit was brought by the Authors' Guild against the Hathitrust Digital Library, which holds the digital books for the library. Timothy B Lee does a good job summing up the judgment and its implications for Ars Technica:

"The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material," wrote Judge Baer. "The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining." Similarly, Judge Baer noted, the scanning program allows blind readers to read the books, something they can't do with the original.

Also key is the fourth factor: the impact on the market for the works. While a book search engine obviously doesn't undermine the market for paper books, the authors had argued that a finding of fair use would hamper their ability to earn revenue by selling the right to scan their books. But Judge Baer rejected this argument as fundamentally circular. He quoted a previous court decision that made the point: "Were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright owner."

Court rules book scanning is fair use, suggesting Google Books victory


  1. What are your thoughts on this, Cory?  It’d be interesting to hear from someone who has some skin in this game.

  2. Hmmm. That sounds like a common sense interpretation of the law as it relates to new techniques and innovations made possible by technology.


  3. Though I am usually tenacious in my defense of “Fair Use”, the headline caused me to say “Uh-oh”. How could scanning entire books be fair use?

    However for search purposes in a public research library I can see the benefit clearly, and without general access the scanning makes much more sense.


  4. I’m particularly heartened by that last point. I sincerely hope it becomes widely adopted as a legal precedent.

    To give a single example of something that would benefit from this: Sampling.

  5. I think the ruling was a little more subtle than the headline portrays. Judge Baer said libraries could scan for the purpose of indexing and data mining, and to offer their materials for the print disabled. I don’t think that this ruling includes scanning for public circulation.

    1.  A key proviso, making the ruling seem quite nuanced and intelligent.

      And hooray for giving more access to books for the sight-impaired!

    1. Your quote is too short…
      “Timothy B Lee does a good job summing up the judgment and its implications for Ars Technica”
      His good job consists of the summing up… (which was done for

  6. It’s like making a concordance for every book ever, which is not only legitimate fair use but also awesome.

  7. If I write a book, and get it published, then produce a braille version, and maybe an audio-book version, and then someone else simply takes the printed edition, scans it entirely and uses Google translate to make a Japanese version – is that still fair use?

    What if I don’t do a braille version? Or I’m working on the audio-book version and someone else does it first?
    The judge seems to be suggesting that simply taking a printed work and scanning it, for some purpose other than originally intended, is fair use. So if I don’t make my book available in .epub format, does that mean someone else is allowed to do so?

    There’s a local artist in my town who sells originals and prints of her work, along with postcards of the same images. She’s just found out that someone has been making cheap coasters and other items, using her images, all made in China and now sold in some local souvenir shops.  She didn’t intend for that to happen – is that fair use?

    1. Well, there is first sale doctrine, as long as you don’t make logical copies (only one user per purchase book at a time), you are legal. 
      So I can buy your postcards, and laminate them into coasters, and I’m legal. Now if I go and make copies of your work, and make coasters from that, you can sue me for copyright violations.

    2. I think you’re confusing derivative works (e.g. foreign language translations) with transformative works (e.g. creating massive, multi-book indexes). Authors/creators usually reserve the rights for derivative works, but transformative uses, depending on the four factors the judge described in detail, can be fair uses…and in this case, were.

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