Background

The Authors Guild v. Google, Inc. case began over ten years ago. In 2004, as part of the Google Library Project, Google entered into agreements with several libraries to digitize books in those libraries’ collections. Books digitized included books still protected by copyright. Google displays snippets – or several lines of text - of the digitized books in Google search results. The participating libraries are allowed to retain digital copies of the books they submit with the contractual understanding that the libraries will not use their digital copies in any manner that violates copyright laws.

For its Library Project and related Books Project, Google has digitized tens of millions of books without the authorization of the books’ publishers or authors. In 2005, the Authors Guild, the Association of American Publishers, McGraw-Hill Companies, Simon & Schuster, John Wiley & Sons, and five individual authors filed a copyright infringement lawsuit against Google in the Southern District of New York. The district court found Google’s use of the books to be fair use and granted summary judgment to Google. The Authors Guild and the other plaintiffs appealed.

In this recent ruling, the Second Circuit  agreed with the district court and concluded that Google’s use of the books is a fair use and, therefore, non-infringing.

The Authors Guild's Arguments on Appeal

The Second Circuit rejected all of the Authors Guild’s arguments. Here are those arguments and the court’s corresponding responses summarized in much more simplified terms than expressed in the court’s 49-page opinion:

1. The Authors Guild argued that neither Google’s digital copying of entire books nor allowing users to read snippets of those books qualifies as a transformative use. Court’s response: Snippets serve the transformative purpose of identifying books of interest to the searcher. In order for Google to offer the snippet feature, Google needs a complete digital copy of the books in its system. Also, having complete digital copies of millions of books within its search engine has enabled Google to facilitate new forms of linguistic research (e.g., examination of word frequencies, syntactic patterns, and thematic markers).

2. The Authors Guild argued that the snippets function as a substitute for the entire book. Court’s response: While Google makes an unauthorized digital copy of the entire book, Google does not make the complete digital copy available to the public. Furthermore, the limitations Google places on the snippet feature – such as blocking about 22% of each book from snippet view and returning the same snippets for a searched term regardless of how many times or from how many different computers the term is searched - means that viewing a book through the snippet feature cannot serve as a substitute for the entire book.

3. The Authors Guild argued that even though public access to the snippet feature is without charge and without advertising, Google’s ultimate commercial profit motivation precludes a finding of fair use. Court’s response: While acknowledging that fair use often favors nonprofit uses, the court highlighted that some of the most universally accepted forms of fair use, such as news reporting, are normally done commercially for profit.

4. The Authors Guild argued that the book-related programs infringe authors’ derivative rights by negatively impacting authors’ ability to exploit search markets. Court’s response: Google’s search and snippet features allow the public access only to very limited information within the book and do not allow any substantial access to a book’s expressive content. Authors do not have an exclusive derivative right to supply information about their works of the sort communicated by Google’s search functions.

5. The Authors Guild argued that Google’s storage of digital copies exposes authors works to hacking and piracy. Court’s response: The books digitized by Google are stored on servers protected by the same security systems Google uses for its own confidential information. The court found Google’s security systems to be “extensive” and “impressive”.

6. The Authors Guild argued that Google’s distribution of digital copies to participant libraries is not a transformative use, and subjects authors to the risk of loss of copyright revenues through access allowed by libraries Court’s response: The libraries proposed use of their digital copies was a fair use since that use entailed making available to library patrons the same type of digitized book searches that Google offers to the Internet public. Also, the participating libraries contractually agreed to use their digital copy in a copyright-respectful manner and to take precautions to prevent dissemination of their digital copies to the public at large. Under those circumstances, Google’s giving each library digitized copies of books already owned by the library is not an infringement.

Why This Case Has Taken So Long

One reason, this lawsuit has continued for more than ten years is that the Authors Guild and Google reached a proposed settlement in 2009. The settlement agreement with its attachments ran 300+ pages. (The historically curious can review the 10-page annotated summary I prepared in 2009 of the Google Book Settlement Agreement.)

One of the troubling components of the rejected settlement is that it was opt-out and not opt-in. The rejected settlement would have applied to anyone who had a copyright interest in a book that was published on or before January 5, 2009 – unless that person took affirmative steps to opt out of the settlement. Also, the rejected settlement allowed Google to make much greater use of digitized books than just snippets – in return for payment to authors. For these and other reasons, the New York district court rejected the proposed settlement in 2011 – and the parties returned to litigating the original copyright infringement claims.