Scanning books in order to make them searchable is fair use. (The Author’s Guild asked the Supreme Court to review the previous court’s opinions that Google Books’ scanning project is fair use, the Supreme Court decided not to hear the appeal (‘denied cert (certiorari)’), and that means the Second Circuit’s opinion on the case stands.)

This morning’s Supreme Court order list (PDF)

This case began shortly before I started law school, and has been an undercurrent throughout my legal career. It’s probably not -entirely- over at this point; Google may still ask for attorneys’ fees, for instance! However, it’s fascinating to reflect on this outcome from a lens of where we were about six years ago, when Jonathan Band and Tricia Donovan put out the “Google Books Settlement March Madness flowchart” (original here) for the Library Copyright Alliance.

I’ve (VERY roughly) highlighted where we seem to have ended up, from among the massive web of paths posited then:

Complex flowchart entitled GBS March Madness: Paths Forward for the Google Book Settlement - actual path taken from litigation through appeal is highlighted
Click to embiggen

Who knew? This is a pretty great outcome for libraries and the public. A lot of those other paths would’ve been even longer, and with less-clear outcomes.

Update: the Library Copyright Alliance have updated their ongoing “family tree” of the case to reflect today’s cert denial. It’s a great way to see the full process as it actually played out, as compared to in the nest of hypotheticals above.

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  1. There could always be attempts in other circuits leading to a circuit split, no?

    1. Certainly, there could. Until such time, tho, I’m gonna go with “more or less affirmed the Second Circuit” as a reasonable lay explanation.

      And it seems unlikely, to me, that this will be tested anytime soon. The two biggest copyright circuits are the Second and Ninth, and it’d be pretty odd for the Ninth not to follow this (especially with the Google & Amazon image-search cases coming out of there, earlier, with -very similar- reasoning.) I remember early on that a lot of folks thought that hashing this out in the Second Circuit, which is home to most of the biggest publishing houses in the US, would give the publishers a boost. Apparently not.

    1. Heh. I did think about that a bit before appropriating it whole-hog. Ultimately, I think my use is probably fair use, and would point particularly to the highly factual (if incredibly detailed), published nature of the original, as well as my non-commercial educational purpose. 🙂

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