The physical books that were scanned by Google were returned to the libraries.
https://btaa.org/library/programs-and-services/book-search/f...
> Will scanning harm the books?
> No. Google developed innovative technology to scan the content without harming the books. Any book deemed too fragile will not be scanned by Google, but may be treated by expert library staff. Once scanned, all print volumes are returned to the library collections.
That was an inherently different goal (borrow the books from the library, scan them, and return them) than the Bartz v. Antrophic ruling.
https://cases.justia.com/federal/district-courts/california/...
> Storage and searchability are not creative properties of the copyrighted work itself but physical properties of the frame around the work or informational properties about the work. See Texaco, 802 F. Supp. at 14 (physical), aff’d, 60 F.3d at 919; Google, 804 F.3d at 225 (informational); Sony Corp. of Am. v. Universal City Studios, Inc. (“Sony Betamax”), 464 U.S. 417, 447 (1984) (rightful interests). In Texaco, the court reasoned that if a purchased scientific journal article had been copied “onto microfilm to conserve space, this might [have been] a persuasive transformative use.” 802 F. Supp. at 14 (Judge Pierre Leval), aff’d, 60 F.3d at 919 (reducing “bulk[ ]” “might suffice to tilt the first fair use factor in favor of Texaco if these purposes were dominant“). In Google Books, the court reasoned that a print-to-digital change to expose information about the work was transformative. Google, 804 F.3d at 225 (Judge Pierre Leval). And, in Sony Betamax, the Supreme Court held that making a recording of a television show in order to instead watch it at a later time was copying but did not usurp any rightful interest of the copyright owner. 464 U.S. at 447, 455. Important to the Supreme Court’s reasoning was the expectation that most such copiers would not distribute the permanent copies of the work. Finally, in A&M Records, Inc. v. Napster, Inc., our court of appeals recognized the reasoning just explained, and therefore rejected by contrast a digitization effort that was touted as space-shifting but in fact resulted in the multiplication of copies shared with outsiders through a file-sharing service. 239 F.3d 1004, 1019 (9th Cir. 2001), aff’g in this part 114 F. Supp. 2d 896, 912–13, 915–16 (N.D. Cal. 2000) (Judge Marilyn Hall Patel) (citing Sony Betamax and Texaco).
> Here, every purchased print copy was copied in order to save storage space and to enable searchability as a digital copy. The print original was destroyed. One replaced the other. And, there is no evidence that the new, digital copy was shown, shared, or sold outside the company. This use was even more clearly transformative than those in Texaco, Google, and Sony Betamax (where the number of copies went up by at least one), and, of course, more transformative than those uses rejected in Napster (where the number went up by “millions” of copies shared for free with others).
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The AI training isn't borrowing from libraries and returning from libraries. Instead, it is buying a book, format shifting, and retaining that format shifted version from its own use. The company can't do anything else with the book once they've format shifted it. They can't donate it and they can't resell it. In that light, destructively scanning the book is the best option. There is no value in trying to non-destructively scan it because otherwise all it would do is sit in a warehouse and cost money to pay for storage of something they can't sell.